WHISTLEBLOWING

An employee's guide on whistleblowing from the employment law experts

Marjon Law, specialist employment lawyers is owner-led by Marc Jones, who is ranked and recommended in legal publications as a leading employment law solicitor, with over 20 years of experience practising solely in employment law.

(1) What does whistleblowing mean?

Essentially, you will “blow the whistle” when you disclose information, which relates to suspected wrongdoing or dangers at work in order to attract statutory protection (legally referred to as a protected disclosure). This may include:

criminal activity
miscarriages of justice
danger to health and safety
damage to the environment
failure to comply with any legal obligation or regulatory requirement
bribery, financial fraud or mismanagement.

The information disclosed must be in the public interest and serious and not merely a trivial matter.

Disclosure of information by a whistleblower normally relates to something that is not personal to you but will impact others (eg your colleagues, your employer or a third party). Unlike a complaint, which normally relates to you personally. This could be unfair treatment by a colleague or a breach of their contract of employment. Therefore, the individual has an interest in the outcome of the complaint. Such a complaint would normally be in the form of a grievance to your employer.

Whistleblowing concerns can relate to the conduct of your managers or colleagues, but it can also relate to the actions of your employer (eg a policy decision) or a third party (eg a customer, supplier or service provider).

(2) What protection does the law provide to whistleblowers?

Under the Employment Rights Act 1996 if an employee “blows the whistle” they will receive protection from:

being dismissed or
victimised (ie by being subjected to a detriment) because of their whistleblowing.

This protection applies from the first day of your employment or engagement with your employer.

A whistleblowing dismissal is automatically unfair and you do not need 2 years’ continuity of service to bring an employment tribunal claim. Compensation is also uncapped.

In relation to victimisation, a tribunal can award compensation for financial loss and injury to feelings (in the same way as discrimination claims).

You will lose any statutory protection if they commit an offence when making the disclosure.

The public interest test can be satisfied even where the basis of the disclosure is wrong or there was no public interest in the disclosure being made, provided that the individual’s belief that the disclosure was made in the public interest was objectively reasonable.

(3) How should the disclosure be made?

To gain protection, the disclosure would normally be made to:

your employer
some other responsible person where the individual reasonably believes the disclosure does not relate to the employer
to a prescribed person defined by statute and the individual reasonably believes that the information given to that person is substantially true. However, protected disclosures are not limited to these three particular types.

Comment

Whistleblowers at work will receive statutory protection from being victimised or dismissed provided that the information they disclose meets certain criteria. Whether an individual disclosure meets those criteria will always be a question of fact and legal advice should always be taken before any action is commenced.

This blog does not constitute legal or other professional advice. Appropriate legal advice should be sought for specific circumstances and before action is taken.