Introduction

Workers protected by the public interest disclosure provisions (including employees) can complain that they have been subjected to detriment by their employer for making a protected disclosure. An 'employee' can also make a claim of unfair dismissal if they are dismissed because they have made a protected disclosure; a 'worker' does not have the right to make a claim for unfair dismissal.

The claim must be made before the end of three months beginning with the date of the act or failure to act which caused the detriment.

Where a worker complains that they've been subjected to a detriment and the tribunal finds the complaint well-founded, it will make a declaration to that effect and may order the payment of compensation.

Where a worker complains that they have been subjected to a detriment and the Employment Tribunal (ET) agrees, it will make an order stating that the employer caused the detriment. This order is called a 'declaration'. The ET could also order compensation to be paid to the worker.

Unfair dismissal claims

Any dismissal of an employee due to the making of a protected disclosure will be automatically unfair. No qualifying period of continuous employment is necessary. An employee will also be unfairly dismissed if the reason or principal reason for selecting the employee for redundancy is that they made a protected disclosure.

The complaint should be made to the ET within 3 months of the dismissal. The employee can also claim an interim order, which can require their employment contract to continue until the final hearing. This can mean that the employer has to reinstate or re-engage the employee and pay the employee's salary. The employee can only claim this if they apply for it within 7 days of the effective termination date of employment. This order will be given if the ET considers it likely that the employee will succeed at the full hearing.

If an ET finds that a complaint of unfair dismissal is justified, it will order that the employee be reinstated or re-employed, or it will order that the employee be compensated. The amount of compensation that can be awarded is unlimited.

In England, Wales and Scotland (but not Northern Ireland), if the disclosure was made in bad faith, then an ET can reduce an award for compensation by up to 25%.

In addition, ETs have the power to send details of whistleblowing claims directly to a prescribed regulator (such as the office of fair trading and the Information Commissioner, amongst others) where the claim (or part of it) has been justified, the employee has expressly consented to this and the tribunal considers that it is appropriate to do so.