With the News of the World phone-hacking scandal still in the headlines, we thought we’d look at the question of what you should do if your client or boss asks you to do something illegal as part of your job, or you know that your Employer / Client is breaking the law.
Although rare for most people it is clearly not un-heard of and it could be any number of actions that you are being asked (or know that someone else is being asked) to do, including:
- Falsify business letters or data
- Copy other organisations’ confidential documents
- Get a good employee fired for the wrong reasons
- Falsify accounts
- Steal (another company’s ideas, etc.)
- Commit an action that is environmentally unlawful
- Commit Fraud or Tax evasion
- Ignore or commit Health and Safety failings
- Take part in Insider trading
- Offer or receive a Bribe in the UK or bribe a foreign public official (the Bribery Act came into force on 1st July 2011, see our Guide to the Bribery Act).
We’re not talking about your Employer asking you to do things that are outside of your job description (it’s happened to us all – collect the dry cleaning, make the tea, buy a present for the bosses’ wife etc.) which can annoy you intensely, but actions that are illegal.
This type of scenario is obviously going to put you in a very difficult position as you work out how you should handle the situation and what the consequences may be, but it also may put you in a position where you are actually complicit in their illegal behaviour.
You can of course say no and walk away. However if you cannot or do not want to you can look for alternative non-illegal actions. You can do it and hope for the best.
Should you inform the authorities? Will you lose your job or your client if you do? Do you stay quiet? Do you try to have a conversation with someone in management (not all the management of the company may be aware of what is going on?) about your awareness and unhappiness at the situation. If the illegal activity is related to employment / contracts / recruitment then you should first try to talk to your Human Resources department / Trade Union – if you have one.
You can keep a record of the alleged wrong-doings (or requests) but try to be absolutely sure you have the correct facts about the illegal acts someone is doing or being asked to do (so your Employer doesn’t turn round and sue you for defamation if you are incorrect). Often it may be best to get confidential advice first from outside the organisation so you can work out how best to proceed. You may wish to contact a body like Citizens Advice who can point you towards a Solicitor or alternatively you can contact various other bodies, including a charity called Public Concern at Work (see below).
There is law in the UK that allows Employees and Workers to ‘whistle-blow’ about a dangerous or illegal activity at their workplace (the Public Interest Disclosure Act) and if the worker is subsequently dismissed or victimised in any way at work because of their whistle-blowing, this would be seen as an automatic unfair dismissal at Employment Tribunal. See our Guide about Whistle-Blowing here.
Public Concern at Work is the UK’s whistle-blowing charity. Established in 1993, it offers confidential advice to people concerned about crime, danger or wrongdoing at work. They have a confidential whistle-blowing advice line on 020 7404 6609 and their website also carries advice. They can advise you on how to raise a concern while minimising any risk to yourself. They believe that whistleblowing is a valuable activity that can positively influence everyone’s lives as it highlights problems and often stops further real damage being done. Under the Public Interest Disclosure legislation the whistle-blower is not expected to prove the malpractice, they are just the ones raising the concern.
Public Concern at Work advises workers to:
- Seek advice before blowing the whistle
- Remain calm
- Think about the risks and outcomes before you act
- Let the facts speak for themselves
- Don’t make ill-considered allegations
- Remember you may be mistaken or there may be an innocent or good explanation
- Remember you don’t need you to become a private detective
- Recognise that you may not be thanked
PCAW are covered by a duty of confidentiality that means that they will not disclose your details to your Employer when you speak to them.
Generally you are advised to talk to your Employers / Client first (they may have a whistle-blowing policy and since the Bribery Act came into force in July 2011 Employers are recommended to have a Whistle-Blowing policy and bribery prevention policies to ensure they don’t fall foul of the Bribery Act). You can also speak to the authorities (HMRC, the Police, the Health and Safety Executive etc.) so they can determine whether there is a substantial basis for what you suspect is illegal. If your employment contract contains a gagging clause that prevents you from whistle-blowing, this is void and not legally valid.
Ultimately, if you are unable to progress your complaint on your own within the company and you do not wish to use the Public Interest Disclosure Act you may need to leave the company. If you are an Employee and feel you have no option but to leave you can resign and potentially make a Constructive dismissal claim. Constructive dismissal is a form of unfair dismissal where the employee feels compelled to resign due to their employers behaviour – the employers actions must have fundamentally breached the contract of employment (which an illegal act would do). However, Constructive dismissal cases are notoriously difficult to win at Employment Tribunal so you would also need to take advice about this first too.