PROTECTED DISCLOSURES (whistleblowing)

A guide on protected disclosures (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.

If you would like urgent advice on whistleblowing, please contact us as soon as possible.

What does whistleblowing mean?

An employee “blows the whistle” when they disclose information that relates to suspected wrongdoing or dangers at work in order to attract statutory protection (referred to as a protected disclosure).

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

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). 

What is the difference between blowing the whistle and making a complaint?

Disclosure of information by a whistleblower normally relates to something that is not personal to an employee but will impact others (eg an employee's colleagues, an employer or a third party). 

A complaint normally relates to an individual personally. This could be unfair treatment by a colleague or a breach of their contract of employment. Consequently, the individual has an interest in the outcome of the complaint. Such a complaint would normally be in the form of a grievance.

What protection do you receive if you blow the whistle?

The Public Interest Disclosure Act 1998 (PIDA) provides whistleblowers with two levels of protection:

• dismissal of an employee or employee shareholder, which will be automatically unfair if the reason, or principal reason, for the dismissal is that you have made a protected disclosure (section 103A of the Employment Rights Act 1996 (ERA))
• being subjected to a detriment if you are an employee, employee shareholder or worker because you have made a protected disclosure (section 47B of the ERA).

The definition of a worker under PIDA includes other types of individuals:

• homeworkers, whether or not the work is to be done by them personally
• non-employees undergoing training or work experience as part of a training course, otherwise than at an educational establishment
• self-employed doctors, dentists, ophthalmologists and pharmacists in the National Health Service
• student nurses and student midwives
• agency workers
• police officers
• in some cases, partners in limited liability partnership.

Unlike ordinary unfair dismissal claims, there is no cap on compensation in whistleblowing dismissal claims as they are automatically unfair. Also, an employee does not need 2 years continuous service to pursue such a claim.

How do you receive whistleblowing protection?

An employee will only receive protection as a whistleblower if you have made a qualifying disclosure, which means:

• a disclosure of information, which includes an allegation that is made either in writing or verbally
• the subject matter of the disclosure relates to one of the 6 types of failure: (a) criminal offences; (b) breach of any legal obligation; (c) miscarriages of justice; (d) danger to the health and safety of any individual; (e) damage to the environment; and (f) the deliberate concealing of information about any of the above
• a reasonable belief in the wrongdoing no matter that the belief subsequently turns out to be wrong
• the disclosure must be in the public interest based on the subjective belief, which could be based on: (a) the numbers in the group whose interests the disclosure served; (b) the nature of the interests affected and the extent to which they are affected by the wrongdoing disclosed; (c) the nature of the alleged wrongdoing disclosed; and (d) the identity of the alleged wrongdoer.

The qualifying disclosure can be made:

• before your employment starts with an employer
• during employment with an employer
• during employment with a previous employer
• after employment with an employer has ended.

What is a protected disclosure?

A qualify disclosure will amount to a protected disclosure only if it has been disclosed to a specific category of person who is:

• an employer (eg the person specific in a whistleblowing policy)
• a responsible person only where the employee reasonably believes the malpractice relates solely or mainly to that person and not the employer
• a legal adviser in the course of obtaining legal advice
• a Government Minister (eg an NHS body, a utility regulator or a statutory tribunal)
• a prescribed person (eg the Health and Safety Executive)
• a person who is not covered by the list above provided certain conditions are met: (a) the employee must reasonably believe that the information disclosed, and any allegation contained in it, are substantially true; (b) the employee must not make the disclosure for the purposes of personal gain; (c) it must be reasonable for the employee to make the disclosure; and (d) the employee must have:
• previously disclosed substantially the same information to the employer or to a prescribed person
• reasonably believe, at the time of the disclosure, that the employee will be subjected to a detriment by their employer if they make disclosure to the employer or a prescribed person
• reasonably believe (where there is no prescribed person) that material evidence will be concealed or destroyed if disclosure is made to the employer.

There are exceptions which are:

• the disclosure is of legally privileged information by a person (such as a lawyer) to whom the information has been disclosed in the course of obtaining legal advice it is not a protected disclosure
• where making a disclosure would commit a crime in doing so
• parliamentary staff are protected against dismissal but not detriment, which is the same for members of the armed forces.

What if you suffer a detriment for whistleblowing?

Detriment means treatment of a kind that a reasonable person would or might take the view that in all the circumstances the employee has been disadvantaged. An unjustified sense of grievance cannot amount to a detriment. It is not necessary to demonstrate some physical or economic consequence.

The Whistleblowing Commission Code of Practice provides examples of disadvantages that could amount to a detriment:

• failure to promote
• denial of training
• closer monitoring
• ostracism
• blocking access to resources
• unrequested reassignment or relocation
• demotion
• suspension
• disciplinary sanction
• bullying or harassment
• victimisation
• dismissal
• failure to provide an appropriate reference
• failure to investigate a subsequent concern.

An employee, employee shareholder or worker, has the right not to be subjected to any detriment on the ground that they have made a protected disclosure.

If the detriment takes the form of a dismissal, an employee cannot bring a detriment claim against their employer but can instead bring an employment tribunal claim for automatic unfair dismissal. However, an employee may:

• still have a separate claim against their employer for detriment up to the date of dismissal
• have a claim for detriment against any colleague involved in the decision to dismiss them (alongside the unfair dismissal claim against the employer), and compensation for such a claim might include post-dismissal losses.

Only an employee can bring a detriment claim based on the termination of their employment contract, and in such a case any compensation must not be more than an employment tribunal would have awarded if the claim had been one of unfair dismissal.

If an employee is subjected to a detriment by their ex-employer (eg a bad reference) after termination of their employment, they can still bring an employment tribunal claim for detriment.

A worker or agent of an employer can be personally liable if they victimise a whistleblower and then become a party in an employment tribunal claim.

The appropriate test requires an employment tribunal to be satisfied that the detriment was on the ground that the employee, employee shareholder or worker has made a protected disclosure. The detriment must be more than just related to the disclosure. There must be a causative link between the protected disclosure and the reason for the treatment, in the sense of the disclosure being the real or core reason for the treatment.

What if you are dismissed for whistleblowing?

An employee or employee shareholder will be regarded as automatically unfairly dismissed if the reason, or principal reason, for the dismissal is that they have made a protected disclosure. There is no requirement that the protected disclosure concerned was made to the employer carrying out the dismissal.

The appropriate test requires an employment tribunal to be satisfied that the whistleblowing caused the dismissal, which creates two questions:

• was the making of a disclosure the reason (or principal reason) for the dismissal?
• was the disclosure in question a protected disclosure within the meaning of the ERA?

If the answer to both questions is yes, the employee or employee shareholder will have been unfairly dismissed.

Are there are any special provisions relating to whistleblowing?

In a whistleblowing unfair dismissal case, an employment tribunal can grant interim relief by making an order for the continuation of employment pending final determination of the case (sections 128 and 129 of the ERA).

Applications for interim relief must be made before the end of the 7th day following the effective date of termination. If an employee or employee shareholder was dismissed with notice, they can also make an application during the notice period.

An employment tribunal must hold a hearing as soon as practicable and must give the employer at least 7 days’ notice of the date and time. Hearings will rarely be postponed, and only if the tribunal decides there are special circumstances. Hearings are summary in nature and in most cases the tribunal will rely on the pleadings, written submissions, documents and any witness statements.

Interim relief can only be granted if the tribunal thinks that the claimant (ie the employee or employee shareholder) is likely to establish at a final hearing that the protected disclosure was the reason (or principal reason) for dismissal. This means that it must be likely that a tribunal will find that:

• the employee has made a disclosure to their employer
• the employee believes that the disclosure tended to show one or more of the 6 types of failure
• the belief was reasonable
• the employee believes the disclosure to be in the public interest
• the disclosure was the principal reason for the dismissal.

If granted, the tribunal will ask the employer if it is willing to reinstate the employee or re-engage them on terms that are no less favourable and are acceptable to the employee. If so, the tribunal will make an order to this effect.

If the employer refuses to reinstate or re-engage the employee, or fails to attend the hearing, an order for continuation of the employment contract will be granted. This is not the same as reinstatement or re-engagement: it simply gives the employee the right to continue to receive their salary and benefits, and to accrue continuity of service, pending the final hearing. The employee does not have to do any work. However, where the employer offers re-engagement on different terms and if the employee unreasonably refuses the new terms, the tribunal will make no order for continuation.

What remedies are available?

Employment tribunals can award unlimited compensation, which can include an award for injury to feelings and financial loss because of whistleblowing.

Please see web page employment tribunal compensation.

The material contained in this web page is provided for general purposes only and does not constitute legal or other professional advice. Appropriate legal advice should be sought for specific circumstances and before action is taken.

Why choose Marjon Law for protected disclosure (whistleblowing) advice?

We have been involved directly and indirectly with hundreds of employment tribunal claims for clients for over 20 years, many of which involved whistleblowing.

As specialist employment lawyers, our clients' interests are paramount to us. 

We ensure that all our clients receive the best advice possible.

We will advise on whether the disclosure of information amounts to whistleblowing and any subsequent employment tribunal claim.

Contact us today ...