Whistleblower Rights and Protection Explained
Whistleblowing at work is when a worker reports certain types of wrongdoing, usually by their employer. A worker who reports the wrongdoing is often called the whistleblower and is protected by the Public Interest Disclosure Act 1998 (PIDA), which amended the Employment Rights Act 1996.
A worker who is penalised for whistleblowing can claim compensation in an Employment Tribunal, providing the case meets all the legal requirements. One of our Employment Law Solicitors can review your case initially to determine whether you may have a potential claim against your employer.
For free initial legal advice get in touch with our Employment Law Solicitors.
‘Whistleblowing’ and ‘whistleblower’ are not legal terms defined in law, but they have become commonplace when referring to public interest disclosures i.e. blowing the whistle.
Whistleblower Rights at Work
A worker has a legal right not to be dismissed or subjected to any disadvantage by their employer because they reported the wrongdoing. This is known as “making a disclosure”. A worker is only given legal protection provided:
- The report, or ‘disclosure’, is factual rather than a statement of opinion and shows one or more of the following:
> A criminal offence has, is, or is likely to be committed
> Someone has 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
- The whistleblower reasonably believes that it is in the public interest to make the disclosure and it’s not just a personal grievance
- The disclosure is made either to the whistleblowers’ employer, preferably using the employer’s whistleblowing procedure if they have one or in some circumstances, to the relevant regulator.
When a report is made which falls under any of the headings above to the right person, this is known as a “Protected Disclosure”.
If a whistleblower wants to make a claim against their employer in an Employment Tribunal, they have to show:
- That they have made the right kind of disclosure
- To the right person
- They reasonably believed it was in the public interest to do so
- They have been dismissed or suffered a disadvantage
- Their dismissal or disadvantage was because of something their employer has done or failed to do
- The employer’s action, or inaction, was because the worker blew the whistle and made the disclosure
Examples of Whistleblowing Claims
An example of a worker who may have a valid whistleblowing claim would be, that without explanation, they are moved to another department where there are fewer opportunities to earn overtime after they have seen someone covering up inadequate health and safety practices at work and reported it through their employer’s whistleblowing procedure.
Another example might be if a whistleblower is given an unjustified poor appraisal after they have noticed financial irregularities in the company’s budget that cannot be accounted for and reported it to their manager.
Wrong Doing Not by an Employer
Usually, the wrongdoing being reported is on the part of the employer, but in some circumstances, the disclosure can relate to a failure by someone else.
For example, if a teacher disclosed to the police information about a student who was suspected of a sexual offence and was disciplined for it by her employer, the teacher would be protected by the law on whistleblowing.
A whistleblower must be careful about reporting the wrongdoing to anyone other than their employer. Disclosure to that other person is only a Protected Disclosure where the worker reasonably believes that responsibility for the relevant failure lies solely or mainly with that other person.
For example, if a worker discovers that his employer has conspired with a supplier or customer to defraud HMRC, then a disclosure made to the employer is a Protected Disclosure but disclosure to the other conspirator is not.
Does Any Disadvantage after Disclosure Mean a Whistleblower can Claim?
No, it doesn’t but being treated badly immediately after making a Protected Disclosure does raise the question of the employer’s motivation.
The whistleblower has to prove that the employer treated them badly because they reported the wrongdoing rather than for any other reason. This can be difficult as it requires an analysis of the mental processes (conscious or unconscious) which caused the employer to act in that way.
It’s not enough just to say that ‘but for' the disclosure the disadvantage would not have occurred, but if on the face of it there is no other reason for the poor treatment, the employer has to show that their action, or inaction, was not because of the disclosure. This means that the employer's treatment of the whistleblower must not have been materially influenced by the disclosure.
Because of this, it’s difficult for a whistleblower to report the wrongdoing anonymously. If the employer did not know it was the whistleblower who reported the wrongdoing it would be hard to show that the employer treated the whistleblower badly for that reason.
Employer Penalises Whistleblower who Reported Elsewhere
If the worker reported the wrongdoing elsewhere and the employer found out and is penalising the worker, the worker generally doesn’t have any legal protection unless the report is to the employer or one of the other specified bodies. But disclosures to a legal adviser such as a Solicitor or Lawyer are protected.
A whistleblower cannot rely on disclosures to their trade union representative but they can ask their union representative for advice on the employer’s whistleblowing policy and reporting mechanism.
Sometimes, in very limited and specific circumstances, disclosure to an outsider is counted as disclosure to the employer.
For example, an employer's Health and Safety procedures may authorise or require a safety officer to report certain matters to the appropriate authorities. Although the safety officer is, in fact, reporting to outsiders, he or she is deemed to be reporting to the employer so the disclosure is a protected disclosure.
For more information see Whistleblowing at Work.
Time Limits for Making a Whistleblowing Claim
There are very short time limits in place for claiming unfair dismissal or for unlawful unfair treatment. It’s only three months from the date of the dismissal or disadvantageous treatment.
Dismissal for whistleblowing is automatically unfair for those with employee status, see below. For all employees and workers who suffer other disadvantages due to whistleblowing, including dismissal, the claim must be made within three months of the bad treatment/dismissal.
In order to make a claim to the Employment Tribunal, a whistleblower must first apply to ACAS for early conciliation. This is trying to explore a settlement before the claim goes to Tribunal. The application to ACAS for early conciliation must be made within the three-month time limit.
At the end of the early conciliation, ACAS will send a certificate to confirm completion and you can now make your claim at an Employment Tribunal. The time between application for early conciliation and the date on the ACAS certificate is discounted when calculating the three-month time limit for making the Employment Tribunal claim. There is always at least a month after the issue of ACAS certificate to file the employment tribunal claim.
Unlike many other types of employment law claims, there is no minimum length of service required to bring a whistleblowing claim.
To qualify for a whistleblowing claim at work you must be either an employee or a worker, rather than self-employed. Only employees can claim unfair dismissal due to whistleblowing but all workers can claim for unlawful disadvantage, including dismissal, because of whistleblowing.
Am I an Employee, a Worker or Self Employed?
There’s no clear test or dividing line between an employee and a worker and between workers and the self-employed. Just because your contract says you are self-employed and you pay self-employed tax, that doesn’t necessarily mean you’re self-employed.
Employment Tribunals and Courts look at the reality of the working arrangements and consider various factors.
For both employees and workers, there must be a legally binding contract to provide work, whether or not it is written down. All employees are workers but not all workers are employees. Some of the relevant factors are the same but the bar for employee status is higher.
To qualify as an employee, you have to provide work personally and be under an obligation to carry out work offered and the right to be paid for it and the employer must have control over the work. The employer must have the right to give instructions, to more or less control your time and place of work and how the work is to be carried out.
If the company you work for has to provide you with work, you have to do that work yourself when and where the company wants, in the way the company requires, and the company has to pay for it, you are probably an employee with full employment rights.
If you are a whistleblower and you’re considering claiming against your employer you should get legal advice immediately from a specialist Employment Law Solicitor to discuss your options. We can help you but time is short, so contact us below.
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