Law guide: Workplace

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Protection of whistleblowers

Protection of whistleblowers

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 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.

In England, Wales and Scotland, your employer's workers and agents will be personally liable if they victimise you. They will not be held responsible if they have a statement from your employer confirming that their actions did not breach the Public Interest Disclosure Act. It must be reasonable for them to rely on it.

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

Public interest and whistleblowing

The law that protects whistleblowers is ultimately based on considerations of public interest rather than concern for the whistleblower – people are 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 conditions:

  • 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.

Protected disclosures must be made in the public interest. This means that you are raising the concern because it affects other people, e.g. members of the public. It is no longer a legal requirement to make these in good faith. However, an Employment Tribunal can reduce an award for compensation by up to 25% if you made it in bad faith. For example, you will be acting in bad faith if you make a disclosure because you have a grudge against your employer.

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 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. A list of prescribed people and bodies is available on GOV.UK.

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

  • Make the disclosure in the public interest
  • 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 Employment 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 Employment Tribunal, claiming that you have suffered 'detrimental treatment'.

If the disclosure was made in bad faith, an Employment Tribunal can reduce your compensation award by up to 25%.

Note that employment tribunals 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.

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