What is whistleblowing?

What is the impact of whistleblowing in the employment context?

‘Whistleblowing’ or ‘making a disclosure in the public interest,’ involves an employee raising a concern about actions in the workplace whilst being protected by law.

A protected disclosure is a disclosure of information by a worker which:

1. Is a “qualifying disclosure” (meets certain subject matter conditions), and
2. Is made in an appropriate way (to the right person or body, and in good faith where required).

Qualifying Disclosure

A disclosure qualifies if it shows one or more of the following:

• A criminal offence has been committed, is being committed, or is likely to be committed.
• A person has failed, is failing, or is likely to fail to comply with a legal obligation.
• A miscarriage of justice has occurred, is occurring, or is likely to occur.
• The health or safety of any individual has been, is being, or is likely to be endangered.
• The environment has been, is being, or is likely to be damaged.
• Information relating to any of the above is being deliberately concealed.

The worker must reasonably believe the disclosure is in the public interest.

To be protected, the disclosure must be made to:

• The worker’s employer (most common route)
• A prescribed person or body (e.g. the Health and Safety Executive, Charity Commission, etc.)
• A legal adviser (in the course of obtaining legal advice)
• In limited cases, the media or another third party (with stricter tests, including that it was reasonable and not for personal gain)

It does not extend to matters of a personal grievance as these should be dealt with through the company’s grievance process.

Protection provided

The Public Interest Disclosure Act 1998 protects those who speak up with their concerns against any negative treatment or detriment following their disclosure. The idea being to encourage people to raise issues of concern that may cause harm to others or the public without fear of being penalised.

This protection ensures that the whistleblower’s situation will not be made worse, nor should they be subjected to bullying, harassment, a reduction in hours or other punitive measures by their employer and most notably, they are protected from unfair dismissal.

Unfair dismissal for whistleblowing is automatically unfair, and there is no qualifying length of service required.

Who is covered and when?

All employees and most workers are protected from the start of their employment to beyond when they leave.

A few exceptions to this include those who are:

• Self-employed or a non-executive Director.
• A volunteer with employment contract.
• A non-executive Director.
• A member of the armed forces.
• Solicitors/barristers discovering an issue that is protected by professional privilege.
• National security operatives e.g.  those working for MI5 or MI6.

How to make a whistleblowing disclosure

Employers may have a whistleblowing policy in place which should stipulate who the employee can go to.

The most appropriate way to address a concern in the first instance would be with the employer or member of staff who is mentioned in the company policy.

However, if there is sufficiently good reason why this may not be appropriate, then legislation dictates an escalating list of people who reports can be made to.

In the absence of the first option as the employer; a legal advisor, a Minister of the Crown (if your employer is a statutory body) or a prescribed body (e.g. HMRC if the concern was about tax) are all suitable, if justified, to report concerns to.

Usually submitted in writing either via or letter or email, the disclosure should contain the concern and ideally background to why and any specific information such as dates that could be useful for those in receipt.

Although a qualifying disclosure can be made verbally it can be difficult to evidence if a dispute arises later on and therefore it is advisable to follow up any verbal disclosure in writing.

How to claim the protection

Employees can claim whistleblowing protection if they can prove they

• Followed the correct whistleblowing procedure
• Made a qualifying disclosure i.e. that is it in the public interest, contained in the Public Interest Disclosure Act 1998 and is made with ‘reasonable belief’ (as set out above).
• Suffered some detriment because of the disclosure they made.

If you have concerns over who to report to or whether the issue/disclosure would be classed as a ‘qualifying’ disclosure, always seek legal advice for clarification or assistance.