Are Whistleblowers Protected by Law?
If you are an employee or you have what is known as 'worker status', then as a whistleblower you are protected by English law. Worker status includes employees and those contracted by a company to personally perform a service for pay for someone who is not a customer of the worker’s business.
Whistleblowing rights also apply to:
- NHS workers
- Agency workers
- Home workers, casual and freelance workers
- Former workers
- Limited Liability Partnership (LLP) members
If you’re unsure whether or not you are protected, get in touch with our Employment Solicitors for free initial legal advice.
What is a Whistleblower?
A whistleblower is an employee/worker who witnesses and then reports certain types of wrongdoing in the workplace. This wrongdoing usually constitutes some kind of illegal behaviour.
How Do I Report Wrongdoing?
To be protected by law, you must report the wrongdoing or illegal activity to the right person using the right method. If your employer has a procedure to report wrongdoing, you should use that. For example, some employers have confidential telephone hotlines and most employers have whistleblowing policies and procedures.
You would typically report it to your employer, who should then explain the company's whistleblowing policy and what to expect, if you weren’t already familiar with it. Even if they don’t have a whistleblowing policy, you can still report it to your employer.
If you reasonably believe the wrongdoing is by someone other than your employer, you must report it to that other person. If your employer’s procedure covers reports to other persons, you can use that.
If you don’t wish to report to your employer, perhaps because your whistleblowing involves illegal activity which they’re a part of, then you can consult a Solicitor. Disclosures you make to a legal adviser are protected so that you can rely on them in a claim if your employer victimises you as a result.
You can’t rely on disclosures to your trade union representative as protected disclosures, but you can ask your union for advice about the employer’s whistleblowing policy and reporting mechanism.
In some circumstances, disclosures made to other bodies, for example disclosures to some regulators, are protected. You should seek legal advice before making disclosures to anyone not covered by your employer’s whistleblowing procedure.
What if I’m Treated Unfairly because of Whistleblowing?
If you’re treated unfairly at work as a direct result of blowing the whistle, then you can take your case to an Employment Tribunal. To be able to claim legal protection, the disadvantage you suffered needs to be due to the fact that you made what's known as a ‘protected disclosure’.
A ‘protected disclosure’ is of a particular kind of information (a qualifying disclosure) and which is reported to the right person in the right way.
To be a ‘qualifying disclosure’, it must be one that:
• Is factual, rather than opinion
• You reasonably believe it is in the public interest for you to raise
Your disclosure must also show one or more of the following:
- A criminal offence has, is, or is likely to be committed
- Someone has, is, or is likely to fail to comply with a legal obligation
- Someone's health or safety is, has been, or is likely to be at risk
- There is, has been, or is likely to be a miscarriage of justice
- The environment is, has been, or is likely to be damaged
- Someone is covering up any of the above
Some specific examples of whistleblowing could be:
- Witnessing someone cover up health and safety issues at work after someone has suffered an accident due to these same issues
- If you notice financial irregularities in the company’s budget which no one in the relevant departments can account for
Whistleblowing law does not cover personal grievances, so if you’re experiencing problems such as harassment or discrimination at work, these should be reported using your employer’s grievance policy as a first step.
Time Limit for Making an Unfair Treatment Claim
If you believe you were dismissed from work due to whistleblowing, you must start your claim within 3 months of your employment ending. Dismissal for whistleblowing is automatically unfair for those with employee status.
If you suffered other disadvantages due to whistleblowing, including dismissal, you must claim within 3 months of the bad treatment/dismissal. This applies to workers as well as those with full employee status.
Before lodging an Employment Tribunal, you must first go through the ACAS early conciliation process. The application to ACAS for early conciliation must be made within the 3-month time limit. At the end of the early conciliation, ACAS will send you a certificate. The time between your application for early conciliation and the date on which the ACAS certificate is issued is discounted when calculating the 3-month time limit for making the Employment Tribunal claim and you are always given at least a month after the ACAS certificate to file your employment tribunal claim.
There is no minimum period of time in employment required in to make a whistleblowing claim.
If you think you may want to make a legal claim against your employer, you should take advice as early as possible to discuss your options and to ensure you keep within the time limits that apply in your case. If you are a member of a trade union, that is a good place to start.
Can I Report Wrongdoing Anonymously?
Yes, but if you report wrongdoing anonymously and then feel as though you’re being treated unfairly at work as a result, you may struggle to prove to an Employment Tribunal that your whistleblowing is the reason for the treatment you’ve received.
Will I Receive Compensation?
This hinges on what decision the Employment Tribunal reaches. If they decide that your employment was terminated unfairly due to making a protected disclosure, then you could be eligible to claim a loss of earnings.
Unlike a standard unfair dismissal claim, loss of earnings compensation in cases of whistleblowing is unlimited and uncapped.
An Employment Tribunal may also make an award for injury to feelings caused by the dismissal or being badly treated as a result of your whistleblowing. The amount of the award depends on how serious the Tribunal decides your treatment and its impact on you was.
If you’re considering whistleblowing, then it’s important to take advice before proceeding. At Simpson Millar, our Employment Solicitors have an excellent track record at Tribunals and can guide you through the process of whistleblowing, so you know what to expect and how best to proceed.
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