Law guide: Workplace

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Protection of whistleblowers

Protection of whistleblowers

Contents

What is whistleblowing?

Whistleblowing refers to workers passing on information about malpractice or misdeeds, which they have received in their jobs, to their employer or some kind of regulatory authority.

Protection of whistleblowers

As an employee, you're protected under the law if you reveal to those in positions of authority – 'blow the whistle on'- suspected malpractice at work. If you're self employed, for instance as an independent consultant, you may not be protected depending on your relationship with whomever or whatever you're reporting on. Find out about the types of disclosure you can make, who to make them to and what to do if you suffer for whistleblowing.

Public interest and whistleblowing

The law that protects whistleblowers is ultimately based on considerations of public interest, rather than concern for the whistleblower – people can speak out if they find malpractice in an organisation knowing they're protected from losing their job and/or being victimised. This protection encourages them to report where they might have hesitated in the interests of self preservation. Whistleblowing is more formally known as 'making a disclosure in the public interest'.

Who's protected?

You're protected from victimisation as a whistleblower if you meet all of the following:

  • You're a 'worker'
  • You're revealing information of the right type (a 'qualifying disclosure')
  • You reveal it to the right person, and in the right way (making it a 'protected disclosure')

Who is a worker?

'Worker' has a special wide meaning for these protections. As well as employees, it includes the self-employed, agency workers and people who aren't employed but are in training with employers.

What is a qualifying disclosure?

To be protected, you need to reasonably believe that malpractice or 'relevant failure' in the workplace is happening, has happened or will happen. You also need to make your disclosure in the right way.

The types of malpractice the law covers are:

  • Criminal offences
  • Failure to comply with a legal obligation
  • Miscarriages of justice
  • Threats to people's health and safety
  • Damage to the environment

The law also covers a deliberate attempt to cover up any of these.

You may not be protected if you break another law when whistleblowing – for example, if you've signed the Official Secrets Act as part of your employment contract.

What is a protected disclosure?

For your disclosure to be protected by the law, you must make it to the right person and in the right way.

If you make a qualifying disclosure in good faith to your employer, or through procedures which your employer has authorised, the law protects you. You can also complain to the person who's responsible for the area you're concerned about. For example, you might raise concerns about health and safety with a health and safety representative.

You can also make a disclosure to the official organisation or individual responsible for the issue you are concerned about. For example, if you are worried that your employer is not paying your income tax properly, you would tell HM Revenue and Customs. There is an official 'list of prescribed persons' that sets out who you must go to and for what matters.

In order for a disclosure to a 'prescribed person' to be protected, you must fulfil the following requirements. You must:

  • Make the disclosure in good faith
  • Reasonably believe that the information is substantially true
  • Reasonably believe you are making the disclosure to the right 'prescribed person'

You can also make disclosures to others, in certain circumstances. You can make your disclosure:

  • To your legal adviser
  • To a government minister, if you're a public sector employee
  • More generally (e.g. to a professional standards body or, in extreme circumstances, the media)

However, there are different sets of rules as to when each of these disclosures will be protected. For example, the rules covering disclosures 'more generally' are extremely strict (among other things, you must not be acting for personal gain).

If you are unsure, you should always get professional advice before going ahead (note that anything you say to a legal adviser in order to get advice is automatically protected).

What to do next

If you want to complain about malpractice at work, you should follow any procedure set down by your employer (this will often be your employer's grievance procedure). If you belong to a trade union, you can get advice from your representative. If you're complaining about a health and safety issue, you can speak to your safety representative if you have one.

If you're sacked for whistleblowing

If you're sacked for complaining about malpractice at work, you can make a claim for unfair dismissal if you're an employee. You do not need to have the normal one year's service to do this.

If you're not an employee, but are covered by the whistleblowing protections and have a contract that's terminated for whistleblowing, you can take your case to an Industrial Tribunal and claim that you have suffered 'detrimental treatment'.

If you're covered by the whistleblowing protections and you've been victimised (e.g. demoted, been denied training opportunities or promotion) for whistleblowing you can take your case to an Industrial Tribunal, claiming that you have suffered 'detrimental treatment'.

Note that industrial tribunals now have the power to send details of whistleblowing claims directly to a prescribed regulator where the claim (or part of it) has been accepted by the tribunal, you have consented to this and the tribunal considers that it is appropriate to do so.