Employees who 'blow the whistle' on wrongdoing have special legal protection. This protection applies, however, only where the information they disclose relates to certain specified issues and they raise their concerns in a specified way.
The protection was introduced by the Public Interest Disclosure Act 1998, and is incorporated into the Employment Rights Act 1996. These provisions make it automatically unfair to dismiss an employee or select an employee for redundancy for whistleblowing, regardless of the employee's age or length of service. If an employee alleges that he or she has been dismissed for this reason, an employment tribunal may order the employer to re-employ the individual pending the hearing of his or her claim.
It is also unlawful to penalise a worker in any way because he or she has raised these concerns. This protection applies not only to employees and apprentices, but also to anyone else who has a contract to carry out work for the company personally, other than a genuinely self-employed worker who runs a profession or business on his or her own account. It also extends to agency workers, homeworkers, trainees and those on work experience, other than those undertaking training or work experience as part of a course run by an educational establishment. The whistleblowing legislation can also be used by individuals who are subjected to a detriment by their employer following termination of their employment.
In order to qualify for protection, the worker must have reasonably believed that the information he or she disclosed indicated one of the following:
- a criminal offence has been committed;
- someone has failed to meet a legal obligation (which could include the employer failing to meet its obligations under the worker's own contract);
- a miscarriage of justice has occurred;
- someone's health or safety has been endangered;
- the environment has been damaged;
- evidence of one of these things has been deliberately concealed.
The protection also applies if the worker reasonably believed that the information he or she disclosed indicated that one of these things was currently happening or would happen in the future.
The worker is protected if he or she disclosed the information in good faith to one of the following people or bodies:
- the company, or to some other person the company had authorised to receive the information; or
- if the information related to the conduct or legal duties of some other person, that other person; or
- certain other bodies that have been prescribed as appropriate recipients of certain information. For example, the worker is protected if he or she disclosed information about income tax to the Inland Revenue or information about health and safety matters to the Health and Safety Executive.
The worker is also protected if the disclosure was made in the course of obtaining legal advice.
If the worker is an employee, he or she may decide to disclose the information to his or her employer by way of a grievance. If the employee chooses that route, and the information relates to action that the employer has taken or is considering taking against the employee that could be the basis for a claim by the employee to an employment tribunal, both employer and employee must observe as a minimum the procedural requirements laid down by the Employment Act 2002 ( minimum dismissal procedures ).
In certain special circumstances, the worker is protected if he or she disclosed information about the wrongdoing to someone other than those listed above. Disclosure of information to a wider audience is protected only if the worker disclosed it in good faith and not for personal gain, the worker believed the information was true, and it was reasonable for the worker to make the disclosure in all the circumstances. In addition, one of these conditions must apply:
- the worker reasonably believed he or she would be penalised in some way by the company if he or she gave the information to the company or to one of the prescribed bodies;
- there was no relevant prescribed body and the worker thought the company would conceal or destroy relevant evidence if he or she raised the issue with the company;
- the worker had already given the company or the prescribed body the information;
- the information raised issues of an exceptionally serious nature.
Whether it was reasonable for the employee to make the disclosure in these special circumstances depends upon the identity of the person to whom the disclosure was made, the seriousness of the wrongdoing, and whether the wrongdoing was continuing or likely to occur in the future. If the worker decided to disclose the information to a third party because he or she had already given the information to the company or a prescribed body, the reasonableness of that disclosure will depend on what action, if any, was taken by the company or the prescribed body when the information was provided to them. It is also dependent on whether the worker complied with any procedure the company had for reporting wrongdoing.
This makes it important for companies to ensure that they encourage workers to raise concerns internally and inform them how to do so, assure workers that they will not be penalised for raising their concerns, and deal promptly and effectively with any concerns that are raised. If these steps are taken, the worker is unlikely to be protected if, for example, he or she discloses information about wrongdoing to the local newspaper or the local MP before raising the matter through the company's own procedure. A specimen public interest disclosure procedure can be found elsewhere in this Guide.
In most circumstances, whistleblowers have legal protection from victimisation only if they made their disclosure in good faith. This involves more than reasonably believing that the information they disclosed was true: if their dominant motivation when making the disclosure was a personal grudge against their manager, rather than a concern to address or prevent wrongdoing, they will not be protected