Whistleblowing

Overview

• The Public Interest Disclosure Act 1998 provides protection from dismissal, or from a detriment short of dismissal, to workers who want to disclose certain wrongdoing by their employer (i.e. whistleblowing).
• The Act does not give all whistleblowers a right to receive special protection but rather aims to channel any disclosures through appropriate sources where possible.
• The Act applies to 'workers' which is a wider category than employees working under a contract of employment and includes the self employed and third-party contractors where their work is controlled by the 'employer; agency workers; home workers; freelance workers; seconded workers and trainees on vocational/work experience schemes.
• Workers who normally work outside the UK and self-employed professionals are specifically excluded by the Act.
• The charity Public Concern at Work provides advice to individuals as well as training and advice to employers.
• Employment tribunals can pass on details of whistleblowing allegations to the relevant regulator.

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Qualifying disclosures

• The subject matter of any disclosure by workers must fall within one of 6 categories to qualify for protection under the Act. The disclosure must, in the reasonable belief of the worker making the disclosure, be related to one of the following:

1. a criminal offence
2. a failure to comply with a legal obligation
3. a miscarriage of justice
4. the endangering of an individual's health and safety
5. damaging the environment
6. concealing any information in relation to any matter falling within one of the above categories

• The standard used in assessing whether a disclosure is a 'qualifying disclosure' is largely a subjective one. Therefore it is not necessary, for example, to show that a criminal offence has been committed, is being committed or is likely to be committed - but merely that in the reasonable belief of the worker the information disclosed demonstrates, or tends to demonstrate, that this is the case.

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Protected disclosures

• Once it has been established that the disclosure in question is a 'qualifying disclosure', it must be shown that the disclosure is a 'protected disclosure', i.e. that the disclosure was made in a particular manner to a particular person or category of persons.
• There are 3 types of disclosures:

1. internal disclosures usually to the employer or employer's legal advisers
2. regulatory disclosure to the appropriate prescribed body such HMRC or the Health and Safety Executive
3. external disclosure, e.g. to the media or the police

• A disclosure is a protected disclosure if it is made:
  • in good faith to the employer or another person who has legal responsibility for the matter in question
  • in the course of obtaining legal advice
  • to a person or regulatory body (e.g. health and safety representatives) and the worker can show a reasonable belief that the matter falls within the remit of that person or regulatory body, a reasonable belief that the disclosure is substantially true, and that he or she did not make the disclosure for personal gain
• A disclosure must also actually disclose some issue, i.e. convey facts - it is not enough simply to make an allegation.
• Certain extra conditions must be met before workers will be protected when they make external disclosures. Workers must show that:
  • in all the circumstances of the case, it was reasonable for the worker to make the disclosure
  • he or she reasonably believed that they would be subjected to a detriment (including victimisation, termination of employment, action short of dismissal) if the disclosure was made to the employer or a prescribed body, and
  • he or she has previously made a disclosure of substantially the same information to the employer or a prescribed person

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Protection of workers

• Regardless of length of service or age, employees can bring unfair dismissal claims to tribunals on the basis that the reason for the dismissal was that a protected disclosure was made.
• Selection for redundancy on the basis that an employee has made a protected disclosure will be unfair and may attract an unfair dismissal claim.
• The compensatory award for unfair dismissal (including unfair selection for redundancy) is not subject to the upper limit which usually applies to unfair dismissal claims.
• A worker has a right not be subjected to a detriment by the employer on the ground that he or she has made a protected disclosure, e.g. threats, disciplinary action, loss of work or pay, damage to career prospects. A tribunal can award uncapped compensation for the worker's loss as a result of the detriment.

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Policy considerations

• Employers should ensure that a clear and comprehensive whistleblowing policy is in place of which workers are fully aware and in which managers are fully trained.
• As long as the concerns of workers are treated seriously and dealt with properly under such a policy, it will be more difficult for a worker to obtain protected status under the Act for an external disclosure which may damage the employer's reputation.
• A whistleblowing policy should:
  • make a clear statement that malpractice will be taken seriously and that responsible allegations by workers will be dealt with seriously, quickly and confidentially
  • state the category of workers covered by the policy
  • state that internal procedures should be followed except for in defined and exceptional circumstances
  • give clear procedures for workers to follow to report suspicions or evidence of malpractice including to whom the worker should report the allegations initially
  • specify the procedures that will be followed
  • make clear that disclosures will be investigated promptly and that the whistleblower will be kept informed of progress (lack of contact may lead to whistleblowers making external disclosures) 
  • be publicised internally and managers should be trained on it
  • make clear what the penalties are, if any, for making unfounded or malicious disclosures
• Employers should not rely on confidentiality clauses to prevent external disclosures as they are unenforceable if the disclosure is protected. Taking action against a whistleblower for breach of confidence may amount to an unlawful detriment.

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Resources

The Business Protection section of Policies and Documents contains a specimen contractual clause on whistleblowing and a specimen policy and procedure.

Business Link

• Whistleblowing and dismissal

CIPD

• Whistleblowing

UNISON

• Speaking Out Without Fear

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