Advice to health workers thinking of using social media to raise concerns during the Covid-19 pandemic.
Media reports of whistleblowers being gagged, dismissed or threatened with dismissal for speaking out publicly about issues in the global pandemic are worrying, and we at Protect have voiced these concerns in a statement saying how short sighted this approach is from employers.
A theme that has emerged in many of the reports is that whistleblowers have been dismissed, victimised or threatened by their managers after raising their concerns via social media. A Tweet or a Facebook post about the lack of protective equipment or a lack of social distancing policies may bring the whistleblower into conflict with their employer.
Is a whistleblower legally protected if they use social media to raise concerns?
A whistleblower who is dismissed, forced out or victimised by managers or co-workers for using social media to raise concerns could be protected by the whistleblowing legislation the Public Interest Disclosure Act (PIDA). Getting this protection is not straight forward as the legal tests a whistleblower would need to fulfil are the most stringent in PIDA when compared to situations where someone has raised concerns with either their employer or a regulatory body.
Disclosures to an employer
Raising the concern with the employer is the easiest way to get protection, the whistleblower simply needs to show:
- They had a reasonable belief the concerns show a health and safety risk to any individual, or a breach of a legal obligation (which may include health and safety law) or one of the other categories of concern set out in the legislation.
- They had a reasonable belief that raising these concerns was in the public interest (which generally means that they had a wider impact – not just on the worker themselves).
In both cases a reasonable belief means the whistleblower could be wrong about the concerns, e.g. after investigation, the concern itself did not endanger someone’s health and safety, but they would still be protected under law.
Disclosure to a regulator
PIDA protects disclosures made to either a regulator or law enforcement body (the Government maintain a list of such bodies that fall into this category called the Prescribed Person list). Here the whistleblower would need to show reasonable belief in the concerns they were raising but on top of this they would need to show they reasonably believed what they were raising was ‘substantially true’.
Disclosures via social media
PIDA applies the same legal tests for protection to a social media post as would be applied to making a disclosure to a journalist or an organisation that is not a prescribed regulator (e.g. raising concerns about a lack PPE to health campaign group).
The whistleblower now needs to show that the social media post was a reasonable thing to do, in addition to showing they had a reasonable belief in the concerns, and a reasonable belief the concerns were ‘substantially true’.
The legal tests are no longer based on the belief of the whistleblower at the time, instead, this is an Employment Tribunal deciding whether the social media post was a reasonable thing to do. PIDA outlines some key things a whistleblower would need to show:
- they tried and failed to get the concerns addressed by their employer or a regulator
- they reasonably feared victimisation if they raised the concerns with the employer or the regulator
- they feared a cover-up (e.g. destruction of evidence) if they reported the concerns to their employer or a regulator
- there is no regulator prescribed under PIDA to report the concerns to
- the concerns are of an exceptionally serious nature
The key point is that for social media posts to be protected by PIDA requires a whistlebower to demonstrate that the disclosure was reasonable by showing that either they couldn’t raise the concerns else where or that they had tried, and this failed to get the concerns addressed.
In the immediate crisis, the Employment Tribunal may consider a whistleblower approaching the press as more reasonable than indiscriminate use of social media. Responsible journalists will be used to balancing the dual public interest of reporting on the crisis’ while avoiding spreading panic. That said, there is case law that demonstrates what the Tribunal would consider a concern “exceptionally serious in nature” that would warrant a disclosure to the media without approaching their employer or regulator first. The case of National Trust vs Collins showed that Collins was justified in leaking a report detailing a chemical spill on a beach because the National Trust and the local council were too busy with a dispute over who was responsible for the clear up. During this time the public still had access to the beach, which posed a danger.
While PIDA doesn’t require a whistleblower to raise their concerns with their employer or a regulator first, it does require the whistleblower to have a compelling reason why they’ve gone down this path.
Is there a better place to raise the concerns?
The key question before using social media to raise any concerns is to ask yourself whether there’s a better place to approach first. Here’s an overview of those options:
As well as having an easier path to protection under PIDA, a disclosure to the employer may get a quicker response to most concerns as they will be able to act on the concerns faster than a regulator, the media or a social media post.
Some options in the health service include:
- As a first port of call speak with your line manager or supervisor
- If you’ve tried to raise the concerns with your line manager or supervisor and they’ve been ignored, or for whatever reason you cannot raise it with your line manager or supervisor:
- There are FTSUG (Freedom to Speak Up Guardian) if you work in England in certain NHS institutions.
- With named contacts in your organisation’s Whistleblowing or Speak Up policy (see Protect’s webpage for information on raising concerns with your employer). These can include directors, compliance personnel and board members.
- Senior managers, directors, board members etc. who you trust or feel would listen to your concerns.
Raising the concerns internally first will not prevent a whistleblower from raising the concerns externally, whether that is a regulator, journalist or a social media post.
Regulators in the health service
If you do not feel that internal channels will be effective, or if you have already raised the concern internally, your next step may be to contact a regulator. Approaching a regulator with the concern comes with better protection and can still put pressure on an employer who has failed to take the concerns seriously. When considering approaching a regulator look at our webpage on raising concerns with a regulator.
These are the regulators for the health service:
For concerns about Personal Protective Equipment (PPE) the following bodies, though not a prescribed body, could be a good place to approach with concerns before contacting a journalist or using social media. They include:
Contacting a journalist
Approaching a journalist may well be a better option than using social media to raise concerns even if they both come with the same stringent legal tests. This is due to how a journalist can shield a whistleblower’s identity through protection of sources and use a whistleblower’s concerns alongside other material, such as disclosures from other whistleblowers to publish a story about the situation.
If you are considering contacting a journalist or raising your concerns in a social media post either contact us at Protect on 020 3117 2520 or send us an email through our contact online form. You can also get advice from your trade union.
By Andrew Pepper-Parsons
S.c. 43B (1) (a)-(f) of the Employment Rights Act.
 S.c. 43F (1) b (ii) of the Employment Rights Act.
 43G (b) and (d) the Employment Rights Act 1996