POA Circulars

6 | 09.02.2015

Whistleblowing and the use of social media

The NEC and some local branch committee’s have seen an increase with regards to investigations in relation to Social Media. In order to protect the membership I have set out the legislation in relation to whistleblowing.

Members need to be aware that comments they make on social media such as Facebook or Twitter can have serious consequences. If comments on social media are seen by the employer and the employer takes exception to what has been said they may discipline the member. This might even lead to dismissal. In addition if comments are made about an identifiable individual, which are untrue and which damage the reputation of that individual then an action for defamation can be brought against the member which could result in an award of significant damages.

Some members believe they can make comments on social media that are detrimental to the employer’s interests or potentially defamatory because they think such statements are covered by the Whistleblowing Legislation. This may not in fact be the case. The law on whistleblowing is set out below and members will note that the procedure to be followed to gain the protection of the legislation is very complex.

The Law on Whistleblowing

Workers have the right not to be unfairly dismissed or subjected to a detriment for making a “protected disclosure”. To be a protected disclosure the disclosure must be a “qualifying disclosure” which is information that in the reasonable belief of the disclosing worker shows one or more of the following six categories of wrongdoing:-

(a) That a criminal offence has been committed, is being committed or is likely to be committed.
(b) That a person has failed, is failing or is likely to fail to comply with any legal obligation to which he is subject.
(c) That a miscarriage of justice has occurred, is occurring or is likely to occur.
(d) That the health or safety of any individual has been, is being or is likely to be endangered.
(e) That the environment has been, is being or is likely to be damaged.
(f) That information tending to show any matter falling within any one of the preceding paragraphs has been, is being, or is likely to be deliberately concealed.

Furthermore in order to be a “protected disclosure” a qualifying disclosure must be made only to one of the categories of persons set out in the Act and not to other persons:-

(a) The worker’s employer or in cases where the information relates to the conduct of another person or for any other matter which a person other than the employer has legal responsibility for, to that other person.
(b) To a legal adviser in the course of obtaining legal advice.
(c) To a Minister of the Crown where the worker’s employer is: (a) an individual appointed under any enactment by a Minister of the Crown; or (b) a body whose members are appointed by a Minister of the Crown.
(d) To a person prescribed by an Order made by the Secretary of State.
(e) The disclosure can be made to persons over than (a) to (d) above provided that the worker makes the disclosure in good faith, reasonably believes the information to be substantially true, does not make the disclosure for the purposes of personal gain and one of a number of strict conditions is satisfied and in all the circumstances it is reasonable to make the disclosure.

The strict conditions are as follows:

i. That the worker reasonably believes, at the time of making the disclosure, that he will be subjected to a detriment by the employer if the disclosure is made to the employer or a prescribed person.
ii. That in cases where there is no prescribed person in relation to the relevant qualifying disclosure, the worker reasonably believes that evidence relating to the wrongdoing would be concealed or destroyed if a disclosure is made to the employer.
iii. That the worker has previously made a disclosure of substantially the same information to the employer or to a prescribed person.

In determining whether it was reasonable for the worker to make the disclosure regard must be had to the identity of the person to whom the disclosure is made, the seriousness of the relevant failure, whether the relevant failure is continuing or likely to occur in the future, whether the disclosure is made in breach of a duty of confidence owed by the employer to another person, the action which the employer or person to whom a previous disclosure was made might reasonably have been expected to take as a result of the previous disclosure, and whether the worker complied with any procedure whose use by him was authorised by the employer.

(f) Exceptionally serious failures. In this case the worker must make the disclosure in good faith, believing the information could be substantially true, not for personal gain in circumstances where the relevant failure is of an exceptionally serious nature and where in all the circumstances it was reasonable to make the disclosure.

Please bring this Circular to the attention of the membership as I want to ensure that social media is used appropriately and that our members are protected.

Yours sincerely

 

STEVE GILLAN
General Secretary