Law guide: Employment

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What qualifies as disclosure?

What qualifies as disclosure?

Contents

What can be disclosed?

Certain kinds of disclosures qualify for protection ('qualifying disclosures'). Qualifying disclosures are disclosures of information that the worker reasonably believes shows one or more of the following matters is either happening now, took place in the past, or is likely to happen in the future:

  • A criminal offence
  • The failure to comply with a legal obligation
  • A miscarriage of justice
  • A danger to the health or safety of any individual
  • A danger to the environment
  • Deliberate covering up of information tending to show any of the above five matters

When making a disclosure the worker must have reasonable belief that the information disclosed tends to show one or more of the situations listed above ('a relevant failure'). The belief need not be correct - it might be discovered subsequently that the worker was in fact wrong - but the worker must show that he or she held the belief, and that it was a reasonable belief in the circumstances which existed at the time of disclosure.

Protection under the provisions applies even if the qualifying disclosure concerns a relevant failure that took place overseas, or where the law applying to the relevant failure was not that of the United Kingdom.

Disclosure of information by a worker is not a qualifying disclosure if in making it the worker commits an offence (e.g. if disclosure was prohibited under the Official Secrets Act). A disclosure of information which would be protected from disclosure because of legal professional privilege cannot be a qualifying disclosure if made by the legal adviser (or, say, a typist in the adviser's office) to whom the information was disclosed in the course of providing legal advice.

Qualifying disclosure

A qualifying disclosure will be a protected disclosure if the disclosure is made in an acceptable manner. The intent is that except in certain or exceptional circumstances, in order to gain protection the worker should try to resolve the matter internally, or through any other appropriate channel, before going public.

In England, Wales and Scotland, qualifying disclosures made must be in the public interest but do not need to be made in good faith. Disclosures made in Northern Ireland must still be made in good faith.

An Employment Tribunal in England, Wales and Scotland can reduce an award for damages by up to 25%, if it was made in bad faith. For example, a worker will be acting in bad faith if they made a disclosure because they have a grudge against their employer.

Protection does not extend to a worker threatening to make a disclosure. The worker must actually make the disclosure.

Disclosures about health and safety matters

The Employment Rights Act 1996 (or the Employment Rights (Northern Ireland) Order 1996) (under sections 44 and 100 of that Act or articles 68 and 132) provide additional protection to employees who raise concerns about health and safety matters. For example, the 1996 Act (or the Order) provides that it would be automatically unfair to dismiss an employee who acts to protect himself or herself or others from serious and imminent danger.

Where there is a recognised health and safety representative present, the worker should normally tell them about the problem, as it is part of the representative's role to raise such matters with the employer.