BULLYING HARASSMENT AND DISCRIMINATION
At Protect we define whistleblowing as “where a worker raises concerns with someone in authority – internally and/or externally – about wrongdoing, risk or malpractice that affects others.”
As the wrongdoing needs to affect others for it to be a whistleblowing concern, bullying, harassment and discrimination are usually best dealt with by:
- raising your concerns informally with your manager or another appropriate person;
- if this does not resolve your concerns, by making a formal complaint using your employer’s grievance policy. More information on how to raise a grievance can be found on the ACAS website.
However, where the bullying, harassment or discrimination concerns a number of employees and/or affects their rights in a significant way (such as high numbers of work-related stress), it may be appropriate to raise your concerns as whistleblowing concerns.
The Public Interest Disclosure Act 1998
The Public Interest Disclosure Act 1998 (PIDA) gives whistleblowers who are making a protected disclosure the legal right not to be treated negatively or dismissed as a result of raising their concerns. In order for a disclosure to be protected, a number of elements have to be satisfied, including:
- You must disclose specific information;
- You must reasonably believe that the information shows one of six categories of wrongdoing;
- You must be reasonably concerned that disclosing the information is in the public interest; and
- Your concerns must be raised in the right way.
Concerns about bullying, harassment and discrimination, will only satisfy these elements in certain circumstances.
Categories of wrongdoing
The categories of wrongdoing that concerns about bullying, harassment or discrimination are most likely to show are:
This would include breaches of The Equality Act 2010, which makes it unlawful for someone to be discriminated against on the grounds of a protected characteristic in the workplace.
The protected characteristics under the Act are:
- sexual orientation
It could also include bullying that is so severe that it amounts to a breach of your employment contract.
This covers risks to an individual or group of individuals (whether they are a worker of the employer or not, for example a patient or customer).
It would also cover bullying, harassment or discrimination that is affecting mental or physical health, for example if you are under constant pressure and stress awaiting the next incident.
For a disclosure to be protected, you must also be reasonably concerned that disclosing the information is in the public interest. This means that your concerns must affect people other than just you.
If you are the only one impacted by the bullying, harassment or discrimination, it is therefore unlikely that this will satisfy the public interest test. In that case, it is likely to be best for you to raise your concerns informally with your manager, and if this does not resolve them, to raise them as a grievance.
Concerns about bullying, harassment or discrimination will be more likely to satisfy the public interest test where:
- There is a culture of bullying, harassment or discrimination.
- The bullying, harassment or discrimination are impacting the services that your organisation is providing (for example, if providers of care in a healthcare setting are being bullied, it could affect the quality of care being provided to patients).
- You have witnessed the bullying, harassment or discrimination of colleagues or third parties such as a patients or service users.
Where you are being bullied, harassed or discriminated against, but other people are too, the following factors would be considered by a tribunal when determining whether your concerns are in the public interest:
Where a large number of workers are affected, this is more likely to gage the public interest; it would suggest that issues of bullying, discrimination or harassment are systematic or that there is a culture of such behaviour.
Where bullying, harassment or discrimination have a severe impact (for example a severe effect on the mental health of those targeted), it is more likely that this will be in the public interest as opposed to where it is indirect or the impact is minimal.
The public interest test is likely to be met where the negative treatment impacts the work the organisation does or the service that they provide and/or there is a wider risk to patients/clients/consumers or the market.
If the bullying, harassment or discrimination is intentional it will be more likely to gage the public interest than if it is unintentional. A series of events is more likely to show that bullying, harassment or discrimination is deliberate and intentional than a one-off isolated incident.
If the wrongdoer is a senior member of staff, it is more likely the concern will be in the public interest.
The tribunal would look at these factors as a whole and not individually.
Raising whistleblowing concerns about bullying, harassment or discrimination
If you have been bullied, harassed or discriminated against but others have too, in order to satisfy the public interest element when raising your concerns focus on:
- the effect the behaviour is having on a wider group of people (whether this be colleagues, patients or clients);
- the work that you deliver; and/or
- the services provided by the organisation.
Employers will be more likely to investigate whistleblowing concerns, and understand that they are systematic of reflective of a general culture, where they are raised by more than one person. If your colleagues hold the same concerns, consider whether you could raise them collectively (general advice about raising concerns can be found here). An additional benefit in doing this is that it is less likely that one individual will be victimised as a result of raising concerns.
You may be able to request reasonable adjustments to protect you from victimisation as a result of raising your concerns. For example, if you have raised concerns about your manager, you could ask that you are moved to a different department or that you have a different manager whilst their behaviour is being investigated.
What can you expect as a result of raising concerns?
|Raising concerns as whistleblowing concerns||Raising concerns as a grievance|
|Wider cultural or systematic concerns will be investigated. Recommendations could be made about how these concerns can be tackled; you are unlikely to get private redress.||Your personal concerns and the impact of the behaviour on you will be investigated. There will be a legal determination on the issues that you raise. The ACAS Code provides for employees to be given the outcome of their grievance e.g. an apology or a change to the working practices.|
|Your employer should investigate your concerns in accordance with their whistleblowing policy.||Your employer should conduct an investigation in accordance with their grievance policy. You may find it helpful to familiarise yourself with their grievance policy to understand how the investigation will be conducted and what outcome you can expect.|
|Your employer should respect your wish for confidentiality.||A fair process may mean an individual complained about needs to know the basis of the problem, so that they can put their case.|
|Your employer is not required to provide you with feedback from their investigation. In particular, information may be confidential if your employer investigates the behaviour of another individual and disciplines them as a result.||Check the organisations grievance policy to see whether they are required to give you feedback.|
|If your concerns are whistleblowing concerns, you will be protected under PIDA if you are dismissed or victimised as a result of raising your concerns. This is a day one right; there is no requirement for you to have been employed for a certain amount of time.||You will only have protection from dismissal as a result of raising concerns if you have been employed for more than two years.
If you are victimised or discriminated against on the grounds of a protected characteristic, you may be able to make a claim for victimisation or discrimination under The Equality Act 2010.
For more information on the differences between whistleblowing and a grievance, see the following article on our website.
Who else can you speak to?
The Equality Advisory and Support Service can provide advice if you have experienced or witnessed discriminatory behaviour.
For advice about your personal employment rights, you could:
Need advice on this?
You can contact the Protect Advice Line for advice on settlement agreements and whistleblowing.
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