Whistleblowing

The law provides protection to people who whistleblow. In addition to employees, the legislation applies to workers, agency staff, directors and anyone who is not genuinely self-employed.

The whistleblowing legislation is quite complex, and it can be difficult to establish that someone who seeks the protection of the law has in fact complied with the technicalities of the law in order to gain such protection.

The law prevents an employer from dismissing or imposing a detriment upon a person who has whistleblown. Sometimes it will be quite clear that an employer has behaved badly because of a whistleblower. That is somebody with a good work record, who suddenly gets picked on shortly after whistleblowing. In other cases it can be more complex and it can be difficult to establish whether there has been a detriment caused by a whistleblowing disclosure or whether an employee is genuinely being subject to performance reviews and/or disciplinary action for reasons unconnected with the disclosures.

In order to gain protection as a whistleblower the whistleblower must have made a protected disclosure of a nature set out below. There is no minimum qualifying period, i.e. two years of service necessary in order to bring a claim under the whistleblowing legislation. There is no cap on the compensation that can be awarded, unlike other unfair dismissal cases.

The person making the disclosure has to have a reasonable belief that the information tends to show that there has been wrongdoing or that wrongdoing is likely to occur.

The disclosure must fall within one or more of the following definitions

• that a criminal offence has been or is or will be committed,
• that a person has is, or is likely to fail to comply with a legal obligation,
• that a miscarriage of justice has or is likely to occur,
• that the health and safety of any individual is or likely to be endangered,
• that the environment has been damaged is being damaged or is likely to be damaged or
• that information tending to show any of the above has been, is being, or is likely to be deliberately concealed.

It is not necessary to show that a disclosure has been made in good faith. If however a disclosure is not made in good faith then the amount of compensation may be reduced by up to 25%.

It is now necessary to establish that the protected disclosure is made in the public interest and not merely for personal gain or retribution. A distinction should therefore be made between a personal grievance that an employee may have about their employer which only effects the employee, and those matters which are genuinely in the public interest.

Who should the disclosure be made to? This can be a difficult question to answer, and many organisations have specific whistleblowing policies and those policies should where practicable be followed by the whistleblower.

However, the law recognises that on some occasions it is not appropriate for the employee to whistleblow to their employer, the law therefore recognises that there can and should be whistleblowing to prescribed persons or agencies.

The whistleblowing legislation lists a number of organisations to whom complaints or concerns can be made such as the Health & Safety Executive. Our specialist employment team has extensive experience in advising employers where employees allege whistleblowing and the appropriate course of action. We can also assist in drafting a bespoke policy that works for your business.