Whistleblower Rights at Work

Author:
Aneil Balgobin
Partner, Head of Employment Law
Date:
18/03/2019

A person may worry about whistleblowing at work, or making a public interest disclosure, for fear of being punished in some way by their employer. But in certain circumstances, the law does protect workers who appropriately report specific or suspected acts of wrongdoing from being subjected to a detriment.

For free initial legal advice get in touch with our Employment Solicitors.

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Who is Protected by Whistleblowing Legislation?

In order to be protected under the Employment Rights Act 1996, the whistleblower must be defined as a worker. This can include employees, workers, agency workers, self-employed people and trainee staff.

What Qualifies as a Public Interest Disclosure?

To gain protections under whistleblowing legislation, the information being disclosed by the whistleblower must be a relevant qualifying disclosure. This generally means that it must:

      • Be information that is in the public interest
      • Be a serious and not merely a trivial matter
      • Be believed to be substantially true by the person making the disclosure
      • Fall into a specific category of disclosure.

These categories include:

        • A breach of the law by the employer
        • A criminal wrongdoing (e.g. fraud and/or bribery)
        • Miscarriages of justice
        • Dangers to health and safety
        • Damage to the environment
        • An attempt by an employer to conceal information that relates to one of these protected categories.

Personal grievances may potentially not be covered by whistleblowing legislation unless they meet the relevant requirements, and they raise an issue in the public interest or the worker reasonably believes that it is in the public interest.

Who Should the Disclosure be Made To?

To gain protection under legislation, a whistleblower must disclose the relevant information to a certain category of person.

These include:

      • An employer
      • A Solicitor (in the course of obtaining legal advice)
      • A relevant prescribed person/body defined in law
      • A relevant regulatory or professional standards body (e.g. in relevant cases the Health and Safety Executive)
      • The media

It is recommended that legal advice is obtained before making a whistleblowing report to a third party, and in particular, to the media.

Protections and Rights

If a worker makes a relevant protected whistleblowing disclosure gaining the protection of legislation, an employer is not permitted to subject the worker to an unlawful detriment, such as victimisation or their dismissal. Detriments could also take the form of being bullied, unreasonably disciplined, demoted, denied promotion and/or training and/or being unfairly dismissed.

If a protected whistleblower is dismissed, they can potentially pursue an unfair dismissal claim against their employer, even if they have less than two years’ continuous service with the employer. However, a worker may lose any protection under the whistleblowing legislation if, in making the disclosure, they commit an offence.

Making a Claim and Time limits

The general rule is that in order for a worker to pursue a claim in the Employment Tribunal associated with suffering from a detriment, being victimised, and/or being dismissed due to whistleblowing, they must first submit an ACAS early conciliation form at ACAS within three months (three months less one day) of the relevant act occurring.

If the Employment Tribunal finds that a protected worker who whistleblows is subject to victimisation during the course of their work due to whistleblowing, the worker can potentially be awarded compensation for financial losses and for injury to feelings. If such a worker is dismissed, the Employment Tribunal can award compensation in relation to financial losses which is uncapped.

Get Legal Advice

As Employment Solicitors we recommend that a worker obtains legal advice before whistleblowing. If a worker does not make a public interest disclosure in accordance with the law, then the law will not protect them. Without protection, workers may be exposed to an assertion that they have acted unreasonably and (particularly if they report an alleged wrongdoing outside their employer’s organisation) that they have inappropriately harmed their employer’s reputation.

Consequently, they could be subject to disciplinary proceedings and potentially a dismissal. Furthermore, if a person were to report damaging information about a person or an organisation that is untrue, they could also be exposed to the risk of legal action being pursued against them, such as defamation proceedings.

If you have any questions in relation to whistleblowing at work and how the law may protect you, please get in touch with our expert Employment Law Solicitors for legal advice.

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