Whistleblowing โ€“ An Employee's Guide

There are a number of questions and answers relating to whistleblowing that employees are unaware of. This area of employment law can be quite complex, as a number of conditions have to be met in order for an employee to bring about a whistleblowing claim.

It is important that employees are aware of the protection that is available to them in the event they do make disclosures about a wrongdoing in the workplace.

Below is our employee’s guide to whistleblowing which explains how employees can stay protected when making disclosures, and the potential remedies available to employees where they feel they have been treated unfairly after whistleblowing.

Whistleblowing – What Is It?

Whistleblowing is when a worker discloses certain types of wrongdoing at work. The definition of a worker is quite broad under whistleblowing legislation and will be taken to include employees, trainees and agency workers.

A worker can blow the whistle for an event which has happened in the past, or is happening at present, or the worker believes is likely to happen in the near future. Apart from a few exceptions, there is no general duty on the employee to report a particular wrongdoing. One of these exceptions includes the duty to notify management of a health and safety risk.

An example of whistleblowing could be reporting the unfair or unsafe conditions a colleague is forced to work in. Another, less obvious example could be when a colleague is not being paid the minimum wage, or when their pay in general incorrect.

What Are The Conditions For Whistleblowing?

A worker must satisfy the following conditions in order to qualify for protection under the law:

  • The worker must make a ‘qualifying disclosure’. A qualifying disclosure can be defined as information that is disclosed to your employer or third party that falls within a certain category. This is detailed further in this guidance note. In broad terms, a qualifying disclosure should be based on a particular type of information and this has to be disclosed in a certain way.
  • The worker must disclose information. This can be done whilst you are still working for your employer and after you have left the workplace.

When making a disclosure, the information that you are disclosing should be based on one of the following:

  • A miscarriage of justice
  • A criminal offence such as fraud
  • Risk or actual damage to the environment
  • Risk to someone’s health and safety
  • Where the whistleblower believes that someone is covering wrongdoing
  • A company breaching the law.

Based on the above an example, whistleblowing could include where you report an accounting or financial irregularity to your employer. Another example may include where a nurse or doctor reports an issue with the employer’s practices or procedures which could result in placing a patient’s health and safety in danger.

It is important to note that at the time of making the disclosure, you should have a reasonable belief that the information is true. You must also have a reasonable belief that the wrongdoing which is reported is in the public interest.

If you are unsure about the criteria for making a confidential disclosure, be sure to contact an employment law specialist before proceeding.

The Worker Must Make A ‘Protected Disclosure’

Internal disclosure made by a worker to his employer is treated as the primary method of whistleblowing. Where a worker makes a disclosure to a third party, this may only be protected if strict conditions are met, unless the disclosure is made to a ‘responsible third party’ or a ‘prescribed person’.

A responsible third party would include a regulator. This could cover a situation where a nurse or doctor makes a protected disclosure to their professional body such as the General Medical Council or National Midwifery Council.

What Legal Protection Do Whistleblowers Have?

The law provides two sets of protection for whistleblowers:

  • If you are have been dismissed because you have made a ‘protected disclosure’, your dismissal will be treated as being automatically unfair
  • You must not suffer a detriment as a result of the protected disclosure that you have made. For example, if your employer issues you with a warning or reduces your pay as a result of making a disclosure then this is likely to be unlawful.

Confidentiality or gagging clauses in settlement agreements are not valid in relation to protected disclosures. This is to prevent the employers from stopping workers from speaking out or whistleblowing in relation to issues that may have gone on in their previous period of employment.

What About Whistleblowers Who Have Been Treated Unfairly?

If you have been subject to any detriment or dismissed by your employer as a result of the protected disclosure, you may submit a claim to the Employment Tribunal.

Before doing so, you may wish to consider issuing a grievance internally. If your employer fails to deal with your grievance in accordance with the ACAS Code then this could result in an increase, of up to 25%, on any tribunal award.

There is no minimum period of service requirement in order for a worker to bring a claim. This differs from a standard unfair dismissal claim where the employee will usually be required to have two years’ continuous service.

Compensation After Whistleblowing

If a tribunal finds that your employment has been terminated as a result of making a protected disclosure, then you could be entitled to loss of earnings. Unlike a standard unfair dismissal claim, loss of earnings compensation in cases of whistleblowing is unlimited and uncapped.

Where you have suffered a detriment as a result of making a protected disclosure then the Employment Tribunal may provide you with an award for injury to feelings. This works on a banned tiered system depending on how serious the act of detriment is.

How Can Simpson Millar Assist you?

Our employment lawyers have considerable experience in relation to whistleblowing claims. This ranges from initial advice on a potential whistleblowing matter to conducting whistleblowing claims at the Employment Tribunal. If you do have any queries in relation to whistleblowing then please do not hesitate to contact one of our specialist employment lawyers.

To discuss your options in a situation like this contact a member of our employment team today, either on our Freephone number or by our online enquiry form.

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David Hession | Associate, Employment Law | Simpson Millar LLP

David Hession
Associate, Employment Law

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