Law guide: Employment

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Protected disclosures

Protected disclosures

Contents

Acceptable methods of disclosure

A qualifying disclosure will be a protected disclosure where it is made:

  • to the worker's employer, either directly to the employer or by procedures authorised by the employer for that purpose; or
  • to another person whom the worker reasonably believes to be solely or mainly responsible for the relevant failure.

Disclosure to the employer will, in most cases, ensure that concerns are dealt with quickly and by a person who is well placed to resolve the problem. In some small companies, this may be the employer himself. But often an authorised procedure will be helpful. Employers should ensure that any such procedure is communicated to their workers so that they are aware of what to do if they need to make a qualifying disclosure. Consideration should be given to adapting procedures, for example, to facilitate confidential disclosures by workers or to vary the person to whom a disclosure should be made depending upon the seriousness of the allegation or the seniority of the worker.

Internal procedures that are simple to use, readily accessible and which workers are encouraged to use are more likely to result in disclosure of concerns to the employer first, rather than external disclosures that could be damaging to the employer's business. Employers will wish to consider the best way to secure trust and confidence in such procedures to ensure that they will be used, perhaps by involving the workforce, or their representatives.

Workers who are concerned about wrongdoing or failures can, instead of making a disclosure to their employer, make a disclosure to an appropriate prescribed regulator, which is a person or body that has been prescribed by the Secretary of State for the purpose of receiving disclosures about the matters concerned. A list of the prescribed regulators (for England, Wales and Scotland) can be found here.

If a worker makes a qualifying disclosure to such persons, it will be a protected disclosure provided the worker:

  • Reasonably believes that the information, and any allegations it contains, are substantially true
  • Reasonably believes that the matter falls within the description of matters for which the person or body has been prescribed (for example, breaches of health and safety regulations can be brought to the attention of the Health and Safety Executive or appropriate local authority, or environmental dangers can be notified to the Environment Agency)

A qualifying disclosure will be a protected disclosure if it is made to a legal adviser in the course of obtaining legal advice, for example, as to their right to make a disclosure or as to how to make a disclosure.

A qualifying disclosure made by a worker employed in a Government-appointed organisation, such as a non-departmental public body, will be a protected disclosure if made to a Government Minister (either directly or via departmental officials).

A worker can make a qualifying disclosure to the public, or to any other body, if at the time they:

  • Reasonably believed that they would be subjected to a detriment by their employer if the disclosure were to be made to their employer or to an appropriate public authority
  • Reasonably believed that (in the absence of an appropriate public authority), making a disclosure to the employer would result in the employer destroying the information or unlawfully covering it up
  • Had previously disclosed substantially the same information to the employer or to an appropriate public authority

However, the following conditions must be satisfied:

  • The worker must reasonably believe that the information, and any allegations contained in it, are substantially true.
  • The worker must not act for personal gain. This does not prevent a worker receiving money for the information if the worker can show that the main motivation was to act in the public interest rather than out of self-interest.
  • It was reasonable for the worker to make the disclosure in this way.

An employment tribunal will decide whether the worker acted reasonably, in all the circumstances, but in particular, will take into account:

  • The identity of the person to whom the disclosure was made (e.g. it may be more likely to be considered reasonable to disclose to a professional body that has responsibility for standards and conduct in a particular field, such as accountancy rather than to the media)
  • The seriousness of the relevant failure
  • Whether the relevant failure is continuing or is likely to re-occur
  • Whether the disclosure breaches the employer's duty of confidentiality to others (e.g. information that is made available by the worker may contain confidential details about a client)
  • The action which has or should reasonably have been taken in response to a disclosure made previously to the employer or an appropriate public authority. In assessing the reasonableness of the employer's response to the previous disclosure, the tribunal will consider whether the worker complied with any whistleblowing policy of the employer