Expert legal advice for employees
During the course of your employment, you may witness or become aware of dishonesty, risk-taking, malpractice or general negligence whilst undertaking your job role. In such circumstances, you are entitled to make a protected disclosure (otherwise known as whistleblowing). ‘Blowing the whistle’ to your employer can be vital as it can prevent future harm, ensure compliance and improve workplace practices.
What is a protected disclosure?
Broadly speaking, a protected disclosure is a disclosure of information to a specified person and/or body relating to a specified type of wrongdoing. That can include the reporting of:
- A criminal offence or likely commission of a criminal offence;
- A failure to comply with legal obligations;
- A miscarriage of justice that has occurred or is likely to occur;
- Actions that endanger or are likely to endanger the health and safety of others;
- Damage or likely damage to the environment; or
- The intentional concealment of information about any of the above.
Whistleblowing – the legal test
In law, in order for a disclosure to be a ‘qualifying disclosure’ and attract legal protection it must satisfy a number of requirements:
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1. The disclosure must be a disclosure of information
This will be assessed in light of all the relevant circumstances. What is clear, however, is that merely voicing a concern, expressing an opinion or making an allegation will not be enough. The disclosure must involve sufficient factual and specific content.
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2. The worker making the disclosure must reasonably believe that it is made in the public interest and tends to show one or more of certain types of wrongdoing
There are two separate elements to consider at this stage. Firstly, does the worker reasonably believe that what they are alleging tends to show a specified type of wrongdoing? This will largely depend on the information available to the worker at the time of making the disclosure and the burden is on the worker to successfully establish that they had that belief and that belief was reasonably held. It is worth noting that there is no requirement that the allegation made by the worker is factually accurate or true.
There are a number of specified types of wrongdoing set out in the Employment Rights Act 1996, including those set out above.
If it is alleged that something is likely to occur in the future, the worker must reasonably believe that it is more likely than not that will occur.
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3. The disclosure must be made in one of the protected manners
For example, to the worker’s employer, in the course of obtaining legal advice or in certain circumstances be made to a relevant regulatory authority or other bodies or persons.
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4. The worker reasonably believes that the disclosure is made in the public interest
There is no legal definition of what will amount to being in the public interest but in practice, generally, this means that a disclosure cannot relate to a purely personal matter.
The Employment Tribunal have confirmed in recent cases that it is not enough for there to be more than one person’s interest at stake and that there are several factors to be considered when making an assessment as to whether a disclosure is in the public interest. For example:
- The number of individuals whose interests the disclosure served;
- The extent to which those interests are affected by the wrongdoing disclosed; and
- The identity of the alleged wrongdoer.
Dismissals and forms of detriment as a result of making a protected disclosure
Workers who make protected disclosures are protected from being dismissed or selected for redundancy as a result of making that disclosure, or from being subject to a form of detriment (i.e. treated badly) on the grounds that they had made a protected disclosure.
In some instances, unfortunately, employers may react negatively to whistleblowers (despite the protections available) and blowing the whistle can potentially lead to an individual being subject to a number of detriments, including:
- Hostility towards, or harassment or victimisation of the whistleblower;
- Demotion;
- Salary increases, work benefits and/or bonuses being withheld; or
- Dismissal.
If you have made a protected disclosure and then been subjected to a form of detriment from your employer, which you believe is a direct result of the disclosure you have made then you may be able to take legal action against them.
Bringing a claim for unfair dismissal or whistleblowing detriment if you have been dismissed or suffered a detriment as a result of whistleblowing
In order to bring a claim for unfair dismissal, where you believe that you have been dismissed by your employer and the principal reason for that dismissal is that you have made a protected disclosure, you will need to be an employee in law.
Unlike a claim for unfair dismissal, all workers can bring claims for whistleblowing detriment.
An individual does not have to have a qualifying period of employment before they can bring either claim, i.e. an individual has the right to bring this claim from the date they commence working for the employer in question.
If an individual succeeds in bringing either of the above types of claim, the Employment Tribunal has the power to award uncapped compensation.
The rules on calculating time limits to bring a claim in the Employment Tribunal are very strict. Generally speaking and subject to any extension for time spent participating in Acas early conciliation, an individual has three months from the date of the act complained of (whether that be the termination of their employment or the detriment as the case may be) to bring a claim.
How our team of employment law solicitors can help with claims for unfair dismissal or whistleblowing detriment
The legal test to establish that a disclosure is a qualifying disclosure is a complex one and much will depend on the circumstances at hand. We, therefore, recommend if you are considering bringing a claim for whistleblowing detriment or unfair dismissal that you seek legal advice at the earliest possible opportunity.
At Nelsons, we have a team of expert employment law solicitors in Derby, Leicester and Nottingham who specialise in representing employees in claims in the Employment Tribunal and are happy to discuss your situation.
We offer a fixed fee 45-minute appointment which is charged at £225 + VAT. During this initial consultation, you will be able to speak with one of our experienced solicitors who can explain what your legal rights and options are, as well as what your costs may be to take further legal advice, advising on all of the available options to fund your case.