Whistleblowing and the protection afforded to those who whistleblow is vital. For an employer it is important to uncover dangerous practices or wrongdoing in the workplace. For a worker it is important that they understand they are protected against reprisals from other members of staff should they report an incident or practice. The protections afforded by whistleblowing legislation are designed to encourage workers to have the confidence to come forward.
Should an individual believe that they have suffered a detriment as a result of reporting workplace malpractice they may wish to bring a claim.
In order to be afforded the protection of the legislation, an individual must be a worker (i.e. not self employed) and must show there was a ‘qualifying disclosure’, and that it was a ‘protected disclosure’.
- What is a qualifying disclosure?
The information disclosed must be more than a mere allegation or a statement, it must convey facts. A disclosure can be made verbally or in writing.
The information disclosed by the whistleblower to their employer (or to an outside party in exceptional circumstances), must be in relation to events they reasonably believe are occurring, have occurred or are likely to occur in the future, and must relate to:
- A criminal offence;
- Breach of any legal obligation;
- A miscarriage of justice;
- Danger to the health and safety of any individual;
- Damage to the environment; or
- The deliberate concealing of information about any of the above.
- What is a protected disclosure?
Generally, in order for a disclosure to be protected it should be made to the individual’s employer. However there are certain circumstances where the disclosure will be protected if disclosed to one of the following:
- Responsible third parties – an individual can report to a third party without informing their employer if they reasonably believe that a third party (such as a client or supplier) is responsible for the wrongdoing.
- Prescribed persons – the law lists “prescribed persons” to whom disclosures can be made, without the individual informing their employer if they believe the information is substantially true and concerns a matter within that prescribed person’s area of responsibility. These include: HMRC, the Health and Safety Executive and the Office of Fair Trading.
- Government ministers – if the individual is employed by a person or body appointed under statute, they can report information to the relevant minister.
- Legal advisers – matters can be disclosed to legal advisers in the course of obtaining advice.
- Wider disclosure – disclosure to anyone else is only protected if the whistleblower acts reasonably, believes the information is substantially true, acts in good faith, and not for gain. Unless the matter is “exceptionally serious”, the whistleblower must have already disclosed it to their employer or a prescribed person, or believe that, if they do, evidence would be destroyed or they would suffer reprisals.
What protection is given to whistleblowers?
It is unlawful to subject any worker to a detriment (including threats, disciplinary action, loss of work or pay, or damage to career prospects) because they have made a protected disclosure. If an individual is dismissed (including by reason of redundancy) following a disclosure, a claim under whistleblowing legislation is a real risk. For an employer, it is worth considering this, and if appropriate, addressing the situation in advance of any dismissal to minimise risk. If you have made a protected disclosure and have subsequently been dismissed or made redundant as a result, the dismissal or redundancy will automatically be unfair and you may be entitled to bring a claim to the Employment Tribunal. There is no financial cap on compensation that can be awarded in whistleblowing claims, and no requirement for a minimum period of service.