Whistleblowing can broadly be defined as the act of speaking out where a worker believes that an act of wrongdoing has happened, is happening, or will happen. Workers who voice their concerns are protected by law to ensure that they are not subjected to unfair treatment because of this “whistleblowing”.

Whistleblowing legislation

The Employment Rights Act 1996 was put in place to ensure a worker is able to “blow the whistle” and still be protected. This legislation provides three main rights:

  •  it is automatically unfair to dismiss an employee for making a protected disclosure (ERA 1996 s 103A);
  •  it is unlawful to subject a worker to any detriment for making a protected disclosure (ERA 1996 s 47B);
  •  any term in the worker’s contract or any other agreement is void in so far as it purports to preclude the worker from making a protected disclosure (ERA 1996 s 43J). It follows that the act of whistleblowing within the terms of the Act will not amount to a breach of contract.

A UK worker has the freedom to reveal any occurrence in the workplace that they feel acts in contrast to recognised employment law ethics, and that the revelation of such information is in the interest of the general public. This original legislation was amended by the Public Interest Disclosure Act 1998 to better ensure the protection of workers following several high profile whistleblowing cases.

Who is protected by whistleblowing laws?

A “worker” is protected – this is a wider category than an employee. Individuals are protected if they are:

The law caters to workers of all employment forms and not just employees, thereby protecting the interests of a much wider number of UK workers. Such legislation does not cover the interest of self-employed workers, although it does ensure the protection of self-employed citizens working alongside an organisation. Should a whistleblower find themselves in a scenario of this latter kind, they should be aware that there is a lot of legal grey area involved in such circumstances and that consulting an employment law representative will be necessary to ensure they are sufficiently protected.

How does whistleblowing legislation work? The legislation currently in place to protect whistleblowers acts as a safe platform for workers who have issued a ‘protected disclosure’; the official legal name given to a whistleblowing claim. This prevents a worker from being dismissed from their position or experiencing detriment from employers and colleagues as a result of their actions.

The right not to suffer a detriment

The general right is contained at ERA 1996 s 47B(1) which provides as follows:

”A worker has the right not to be subject to any detriment by any act, or any deliberate failure to act, by his employer done on the ground that the worker has made a protected disclosure.”

There are three features common to any claim of unlawful detriment under the relevant provisions:

  •  that the employee or worker suffered some detriment;

  •  that the detriment was caused by some act or deliberate failure to act on the part of the employer;

  •  that the employer’s act or omission was done on a ground of whistleblowing.

The term ‘detriment’ is not defined in the ERA 1996 but it is a term familiar in discrimination law. For example, ‘detriment’ would include

  • any financial disadvantage – such as paying a worker less;
  • denying promotion within the workplace;
  • requiring him/her to work harder or longer;
  • physical discomfort or disadvantage – such as requiring him/her to work unsocial hours;
  • denying the same benefits to the worker.

Often this can include “bullying” and “harassment” of a worker.

It is not necessary for the worker to actually suffer economic or physical damage to show that he/she has suffered a detriment. The test is whether a reasonable worker would or might take the view that the treatment accorded to them had in all the circumstances been to their detriment (see Shamoon v Chief Constable of the Royal Ulster Constabulary [2003] IRLR 285, [2003] ICR 337)

It is important to note that a detriment for the purposes of legislation can occur even after the relevant relationship with the employer has been ended or terminated

The right not to be dismissed.

The right not to be dismissed because of the protected disclosure is contained ERA 1996 s 103A.

Who qualifies for Protected Disclosure?

Protected Disclosure is ensured to all UK workers from the moment they begin working for an employer. A protected disclosure refers directly to the act of revealing information showing that wrongdoing has taken place.

What is a protected disclosure ?

In order for a disclosure to be considered as a protected disclosure the following (ERA s43) must take place:

  • a disclosure must take place within the meaning of the Act;
  • that disclosure must be a ‘qualifying disclosure’;
  • the disclosure must be made by the worker in a manner that accords with ERA 1996 ss 43C to 43H.

I will explain this further below.

What is a disclosure ?

The Act provides a very broad definition of what amounts to a disclosure: ‘any disclosure of information’ will qualify (ERA 1996 s 43B(1)).

The definition has been broadened by the finding that a disclosure can arise from an amalgamation of several communications, even if one or more in themselves would not qualify (Shaw v Norbrook Laboratories (GB) Ltd UKEAT/0150/13 [2014] All ER (D) 139 (Mar).

A disclosure of information will also take place where the information is provided to a person who is already aware of that information (ERA 1996 s 43L).

The most important limitation is that information must be disclosed. It is not enough for a worker to make allegations alone. In Cavendish Munro Professional Risks Management Ltd v Geduld [2010] IRLR 38, EAT it is was stated :

”… the ordinary meaning of giving “information” is conveying facts. In the course of the hearing before us, a hypothetical was advanced regarding communicating information about the state of a hospital. Communicating “information” would be “The wards have not been cleaned for the past two weeks. Yesterday, sharps were left lying around.” Contrasted with that would be a statement that “You are not complying with Health and Safety requirements”. In our view this would be an allegation not information.”

Most cases will involve a disclosure made during the course of the whistleblower’s employment (even if the case arises after dismissal). However, in Onyango v Berkeley Solicitors [2013] IRLR 338 it was held that the legislative protection can apply to a disclosure made after termination of the employment.

What is a qualifying disclosure ?

This largely depends upon the type information disclosed.

The worker making the disclosure must have a reasonable belief that the disclosure is in the public interest and tends to show one of the statutory categories of ‘failure’ (ERA 1996 s 43B(1)).

Note: In order for the information itself to be actually true, the worker must (in his or her view) believe its veracity. It follows that a disclosure may nevertheless be a qualifying disclosure even (in fact) it subsequently transpires that the information disclosed was incorrect.

It is also important to note that the statutory test is a subjective one. This covers the whistleblowing of any worker regardless of their position within an organisation. As long as it can be reasonably proven that the worker’s revelations show that employer wrongdoing has occurred, there is no exception to the allowance of this protection, no matter what position a whistleblower holds within a business. Potential whistleblowers should be wary of making allegations if they do not possess sound information that backs up their claim. An employment law representative should be consulted if a potential whistleblower has any uncertainty over the legitimacy of a claim.

There are also several rules that any whisteblower must adhere to: The disclosure of their claim must be reported to the correct personnel, known as a ‘prescribed person.’ This most often requires raising the issue with a worker employed by the organisation in a supervisory position or higher. If unsure of who to contact, a worker should consult an employment law representative to ensure they take the correct steps.The disclosure must also be genuine and made with honest intent without malice.

Under UK legislation the act of whistleblowing must involve an employer committing one or more of the following employment law violations: The ERA sets out six categories of ‘failure’ to which the information must relate if the disclosure is to be one qualifying for protection (ERA 1996 s 43B(1)(a) to (f)). The categories of failure are as follows:

  •  
(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 and 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, or is likely to be deliberately concealed.

It does not matter whether the act reported occurred, occurs, or would occur in the United Kingdom or elsewhere.

However, it is important to note that:

  • a disclosure will not be a qualifying disclosure if the person making it thereby commits a criminal offence (ERA 1996 s 43B(3)).
  • there will be no qualifying disclosure if it is made by a person to whom the information had been disclosed in the course of obtaining legal advice and the information is covered by legal professional privilege (ERA 1996 s 43B(4)).

How is the disclosure made?

The final element that a worker must demonstrate is that he has disclosed information to the appropriate person or body.

As a general rule, the worker should in the first instance seek to resolve the matter privately within his employer’s organisation. If the circumstances are such that it is unrealistic or impossible for him to resolve the matter in that way, or if he has already tried to do so without success, then, but only then, would it be appropriate to bring the matter to the attention of a wider audience.

A worker can disclose the following:

  • Disclosure to the employer or other responsible person (ERA 1996 s 43C).

Sometimes, however, disclosure to an apparent outsider is deemed disclosure to the employer. This occurs where the worker follows a procedure as authorised by his employer (ERA 1996 s 43B(2)).

  • Disclosure to a legal adviser

The act of revealing sensitive information to legal representatives for advice where appropriate.

  • Public employees

Where a worker works for a government agency or quango, then a disclosure made to a government minister is a protected disclosure (ERA 1996 s 43E).

  • Other prescribed cases

A disclosure may be a protected disclosure if it is made to an appropriate public authority and if the subject matter of the disclosure properly falls within the remit of that authority (ERA 1996 s 43F(1)).

  • Publicity

A qualifying disclosure made by a worker to persons other than the above may become a protected disclosure if it is reasonable in all the circumstances for the worker to make that disclosure to that person, and provided certain other conditions are satisfied (ERA 1996 s 43G).

Another common means of discrediting a whistleblowing case is for an employer to make it appear that the detriment suffered by the whistleblower was the result of an unrelated cause. For example, an employer could defend themselves against claims of workplace mistreatment by stating that such actions were instituted for a reason, such as being punishment for misbehaviour by the employee. It is important to be aware of any possible counter claims like this:

    • Committing a miscarriage of justice;

    • Committing a criminal offence;

    • Committing an act that causes damage to the environment;

    • Making a deliberate attempt to disguise one or more of the acts listed above

    • Committing an act that threatens the health or safety of workers;.

     

Where to be careful

Employers on the receiving end of a whistleblowing complaint will often attempt to quash a claim by stating that the case was not made in ‘Good Faith’, and is therefore intended to harm the business due to the employee bearing a grudge against the employer. Although many employment law specialists have made efforts to bring an end to the Good Faith legislation it remains an area of employment law regularly evoked by employers to refute whistleblowing claims. Ultimately any whistleblower should consider how their claim will be viewed by everyone affected before they begin whistleblowing.

Another common means of discrediting a whistleblowing case is for an employer to make it appear that the detriment suffered by the whistleblower was the result of an unrelated cause. For example, an employer could defend themselves against claims of workplace mistreatment by stating that such actions were instituted for a reason, such as being punishment for misbehaviour by the employee. It is important to be aware of any possible counter claims like this.

Are there any time limits to issuing a whistleblowing claim?

Yes, there is certainly a time limit on making a whisteblowing claim. All claims should be submitted to an Employment Tribunal within three months of the date that the subject of complaint occurred. In a case where the conduct of the claim is ongoing rather than just a one-time occurrence, the time limit will begin from the most recent date that the event took place.

If the case involves the whistleblower being dismissed from their job, the time limit begins from the final day of their employment.

In certain circumstances it is possible for the deadline to be delayed, but this is only available to cases where it is simply not feasible for the claim to be reported in the required time-frame.

When making a whistleblowing claim it is vital that the complaint be considered under the guidelines of the ACAS Code of Practice on Discipline and Grievance Procedures (www.acas.org.uk).

Compensation

If the complainant acts in contrast to the rules set out by this legislation, any compensation that the claimant receives from a successful tribunal ruling will be reduced by 25%. Should the respondent be proven to have neglected these rules they will have to pay the claimant a 25% increase on the amount awarded to them by the tribunal.

What kind of compensation is available?

Determining the amount of compensation that a whistleblowing claim will generate depends largely on the nature of the claim being made, as well as the level of sufferance that the worker has been proven to have experienced. There is no fixed amount to any whistleblowing claim.

Can a whistleblowing claim be made anonymously?

A whistleblowing claim can be made anonymously if an employee would rather not reveal their identity. However, the downside to this is that it may be difficult for an employment lawyer to argue that the employee suffered unfair treatment because of whistleblowing if the case is later presented before a tribunal.This is because of the lack of a direct personal experience being offered, which makes convincing a tribunal a much less straightforward process.

Making a confidential claim differs from making an anonymous one as it requires an employee to at least submit their name. The required professional body that the claim has been trusted with must ensure that it does all it can to preserve the identity of the worker. The identity of any other individuals who might be connected with the claim will also be protected. Expressing a concern to the media instead of reporting it to a required investigative source is considered unfair practice and will most likely result in an employee losing all of their whistleblowing rights regardless of whether they made the claim anonymously, confidentially, or without securing their identity at all.

Employer’s liability for co-workers

A whistleblower has a right to bring a claim against an individual co-worker or agent of the employer that subjected them to a detriment because they have made a protected disclosure (ERA 1996 s 47B(1A).