Whistleblowing – An Overview

Workers who make protected disclosures (otherwise known as whistleblowing) 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.

The legal test

In law, for a disclosure to be a ‘qualifying disclosure’ and attract legal protection it must satisfy several requirements:

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.

2. The worker making the disclosure must reasonably believe that it is made in the public interest and tends to show one or more 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. These include:

• The commission or likely commission or a criminal offence;
• The failure or likely failure of a person (including a person other than the employer) to comply with a legal obligation; and/or
• The endangerment or likely endangerment of an individual’s health or safety.

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 it will occur.

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.

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.

Who can bring a claim for unfair dismissal or detriment if they have been dismissed or suffered a detriment as a result of whistleblowing?

An individual needs to be an employee to be able to bring a claim for unfair dismissal where they believe they have been dismissed and the sole or principal reason for that dismissal was that they made a protected disclosure.

All workers can bring unfair dismissal claims for whistleblowing detriment and an individual does not have to have a qualifying period of employment before they can bring such a claim, i.e. a worker 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.