5 things You Need to Know About Whistleblowing in the Workplace

The Public Interest Disclosure Act 1998 was implemented to protect individuals who make certain disclosures of information in the public interest and are consequently victimised or dismissed. Such disclosures are colloquially referred to as “whistleblowing”.

(1) What does whistleblowing mean?

An individual “blows the whistle” when they disclose information which relates to suspected wrongdoing or dangers at work.

Whistleblowing concerns usually relate to the conduct of managers or staff, but they may sometimes relate to the actions of a third party, such as a customer, supplier or service provider. The law allows whistleblowers to raise a concern with such a third party where they reasonably believe it relates mainly to the third party’s actions or is something that is legally the responsibility of the third party.

(2) What is the difference between making a complaint and blowing the whistle?

A complaint normally relates to an individual personally. This could be unfair treatment by a colleague or a breach of their contract of employment. Consequently, the individual has an interest in the outcome of the complaint. Such a complaint would normally be in the form of a grievance. A disclosure of information by a whistleblower normally relates to something that may not personally impact on the individual but will impact on either the employer or a third party.

(3) What protection does the law provide to whistleblowers?

Under the Employment Rights Act 1996 if an employee “blows the whistle” they will receive protection from being dismissed or victimised (ie by being subjected to a detriment) because of their whistleblowing. This protection is a day one right. A whistleblowing dismissal is automatically unfair and an employee does not need two years’ continuity of service to bring such a claim in the employment tribunal. Compensation is also uncapped. In relation to victimisation, a tribunal can award compensation for financial loss and injury to feelings (in the same way as discrimination claims).

The whistleblower will lose any statutory protection if they commit an offence when making the disclosure.

(4) What qualifies as a disclosure?

The information must be in the public interest and serious and not merely a trivial matter. This may include: criminal activity; miscarriages of justice; danger to health and safety; damage to the environment; failure to comply with any legal obligation or regulatory requirement; bribery, financial fraud or mismanagement.

The public interest test can be satisfied even where the basis of the disclosure is wrong or there was no public interest in the disclosure being made, provided that the individual’s belief that the disclosure was made in the public interest was objectively reasonable.

(5) How should the disclosure be made?

To gain protection, the disclosure would normally be made to: (i) the individual’s employer; (ii) some other responsible person where the individual reasonably believes the disclosure does not relate to the employer; or (iii) to a prescribed person defined by statute and the individual reasonably believes that the information given to that person is substantially true. However, protected disclosures are not limited to these three particular types.

Employment law advice for whistleblowers

Whistleblowers at work will receive statutory protection from being victimised or dismissed provided that the information they disclose meets certain criteria. Whether an individual disclosure meets those criteria will always be a question of fact.

If you would like to discuss your employment situation or would like a review of your employment contract then call us today in confidence on 03456 381381, or email your details to employment@ibblaw.co.uk.