Law guide: Employment

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Whistleblowing

Whistleblowing

Contents

Overview

The Public Interest Disclosure Act 1998 (or the Public Interest Disclosure (Northern Ireland) Order 1998), amending the Employment Rights Act 1996 (or the Employment Rights (Northern Ireland) Order 1996), protects workers (including employees) from being victimised or dismissed or being subjected to detriment for making a disclosure about certain matters (often in breach of contractual terms concerning confidentiality) in certain circumstances. The thinking behind this law is that, in general, workers should be able, out of a sense of public duty, to make disclosures about wrongdoing without fear of reprisals or adverse consequences.

For protected disclosures in England, Wales and Scotland, your workers and agents will be personally liable if they victimise the whistleblower. The workers and agents won't be held responsible if they have a statement from you confirming that their actions did not breach the Public Interest Disclosure Act. It must be reasonable for them to rely on this statement.

You will also be liable if you fail to prevent any acts of victimisation, unless you can show that you took all reasonable steps to prevent it from happening.

Who is protected?

The provisions introduced by the Public Interest Disclosure Act 1998 (or the Public Interest Disclosure (Northern Ireland) Order 1998) protect most employees and workers from being subjected to a detriment by their employer or by the person or organisation for whom they work.

A worker is a person offering their personal service to someone who is not their client or customer. Those who are self employed and are in business to provide a client or customer with professional or other services are not workers. Self employed contractors/freelancers, subcontractors, and casual workers who are in a subordinate and dependent position, and are not providing their services in a client or professional relationship, will be workers. The definition of 'worker' is extended for the purpose of the whistleblowing provisions to include home workers, certain agency workers, National Health Service practitioners such as GPs, certain dentists, pharmacists and opticians (including contractors) and certain categories of trainees.

A detriment may take a number of forms, such as denial of promotion, facilities or training opportunities, which the employer would otherwise have offered. Employees who are protected by the provisions may make a claim for unfair dismissal if they are dismissed for making a protected disclosure. Workers who are not employees may not claim unfair dismissal; however, if the employer has terminated their contract because they made a protected disclosure, they may instead make a complaint that they have been subjected to a detriment.