Employees who raise concerns about wrongdoing at work can find themselves in a difficult position. They may feel a responsibility to speak up, while at the same time worrying about the impact doing so could have on their job or their relationship with their employer.
This is where the whistleblowing provisions of the Employment Rights Act 1996 (“the ERA 1996”) become important. The Employment Rights Act provides significant protection to workers who make what the law calls a “protected disclosure”.
But what exactly is a protected disclosure, and what protection does the law provide?
Not every complaint or concern raised by an employee or worker will amount to whistleblowing (under the legal definition).
Broadly, a worker must disclose information which they reasonably believe is made in the public interest and tends to show that one or more specified forms of wrongdoing has occurred, is occurring, or is likely to occur.
The categories of wrongdoing covered by the Employment Rights Act 1996 include:
Sexual harassment was expressly added as a category of qualifying disclosure from 6 April 2026, extending whistleblowing protection to workers who raise qualifying concerns about sexual harassment.
Importantly, the worker does not have to prove that the wrongdoing actually occurred. This often comes as a surprise to employers.
The question for the Employment Tribunal is whether the worker held the ‘reasonable belief’ in the wrongdoing when they made the disclosure.
One of the most important elements of whistleblowing protection is the requirement that the worker reasonably believes their disclosure is in the public interest.
This does not necessarily mean that the concern must affect the public at large. A concern affecting a group of employees, customers, service users or others may potentially satisfy the test.
Conversely, a complaint which relates purely to the worker’s own personal circumstances will not ordinarily amount to whistleblowing. That type of complaint may be more appropriately dealt with through the employer’s grievance procedure.
This is a mistake we see occurring regularly, where an employee believes they have whistleblowing protection when complaining about something solely related to them.
The distinction however between personal and public interest is not always straightforward.
A complaint can arise from an individual’s own employment circumstances while also raising wider issues affecting other people. Employers should therefore be cautious about dismissing a concern as a “personal grievance” without considering whether there is a wider public-interest element.
The identity of the person or organisation to whom the disclosure is made can also determine whether the worker receives protection under the Employment Rights Act.
The most straightforward route is usually a disclosure to the worker’s employer or another person whom the worker reasonably believes is responsible for the relevant wrongdoing.
If an employer has a whistleblowing policy, any protected disclosure ought to be made to the person or persons, specified within the policy. This will ensure that an employee can satisfy that the disclosure was made to the relevant person. If an employer does not have a whistleblowing policy or an employee does not have access to the policy, the protected disclosure should be made to a manager or someone senior in the business or organisation.
Section 47B of the Employment Rights Act 1996 gives workers the right not to be subjected to a detriment because they have made a protected disclosure.
“Detriment” is deliberately broad and can encompass many forms of disadvantage. Depending on the circumstances, examples might include:
Protection is therefore not limited to dismissal. An employer which keeps a whistleblower employed but penalises them in other ways can still face an Employment Tribunal claim.
Employers also need to consider the behaviour of individual managers and colleagues. Victimising a whistleblower can create liability, and employers should take reasonable steps to ensure that those who raise concerns are not subjected to retaliation.
Employees have protection where they are dismissed as result of a protected disclosure.
Under section 103A of the Employment Rights Act 1996, dismissal will be automatically unfair where the reason, or principal reason, for the dismissal is that the employee made a protected disclosure.
This protection is particularly significant because the employee does not need the usual qualifying period of service to bring an automatically unfair dismissal claim on this basis.
Employers should therefore exercise considerable care where disciplinary, capability, redundancy or other termination processes involve an employee who has previously raised whistleblowing concerns.
The existence of a protected disclosure does not prevent an employer from taking legitimate action for an unrelated reason, but the employer should be able to demonstrate clearly the genuine reason for its decision, and it’s imperative that a formal process is followed and documented.
It is important to note that an employee must raise the protected disclosure prior to any detriment to be able to rely on the protection provided by the Employment Rights Act.
In the event a protected disclosure is raised after an event, for example, after they have been invited to a disciplinary hearing, they cannot allege that they were invited to that hearing because they raised a protected disclosure.
For employers, the safest approach is to treat potential whistleblowing concerns seriously from the outset.
A clear whistleblowing policy can help identify who concerns should be reported to, how they will be investigated and what safeguards are available to the person raising them.
Employers should also maintain appropriate confidentiality, investigate concerns objectively and ensure that managers and colleagues understand that retaliation against somebody because they have raised a protected concern is unacceptable and take appropriate action.
We have noticed a higher volume of Employment Tribunal claims being pursued for either whistleblowing detriment or automatic unfair dismissal. Such claims are usually complex due to the facts the Employment Tribunal need to determine.
From an employer’s point of view, we recommend ensuring that your whistleblowing policy is regularly reviewed, particularly as raising a concern regarding sexual harassment is now a protected disclosure.
If you require any further information, please do not hesitate to contact myself of a member of the team on 01983 897003.
Appointments are available by telephone or via video call, so no matter where you are in England or Wales we can assist you.
The information contained in this blog post is provided for guidance and is a snapshot of the law at the time it is written. It is provided for your information only and should not be used as a substitute for obtaining legal advice that it specific to your particular circumstances.
The guidance should not be relied upon in any decision making process. It is strongly recommended that you seek advice before taking action.
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