Whistleblowing
PLEASE NOTE: This page is intended to give general information about the law but is not intended as legal advice and you must not rely on it as such, nor is any liability accepted if you do rely on it. The law may change from time to time and we cannot include all elements of the law and its application in this summary. For further advice relating to your circumstances, please contact us.
Workers who report information about wrongdoing to their employer, or another relevant organisation, are protected in certain circumstances under the Public Interest Disclosure Act 1998. This is commonly known as “blowing the whistle” or making a protected disclosure in the public interest.
What is a protected disclosure?
A protected disclosure is a qualifying disclosure of information where a worker reasonably believes both that the information tends to show that one of the following failures has occurred/is occurring/is likely to occur:
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Criminal offence (e.g. fraud)
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Breach of a legal obligation (e.g. operating without the correct insurance)
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Miscarriage of justice
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Danger to the health and safety of an individual
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Damage to the environment
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The deliberate concealing of information about any of the above
The other requirement is that the disclosure is in the public interest - i.e. it affects or may potentially affect others and is not just individual to that person or their employment contract.
Although a protected disclosure no longer needs to be made “in good faith”, a tribunal may reduce any compensation award by up to 25% if it is made in bad faith.
What protection is offered?
The dismissal of an employee (including selection for redundancy) will be “automatically unfair” if the main reason for dismissal is that they have made a protected disclosure.
It is also unlawful for an employer to subject a worker to a detriment (including but not limited to threats, disciplinary action, loss of work or pay or damage to career prospects) on the ground that they have made a protected disclosure. The protected disclosure only needs to have played “more than a trivial part” in the employer’s reasoning.
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A worker includes employees, agency workers and trainees.
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An employer will have a defence to a detriment claim if they have taken all reasonable steps to prevent detrimental treatment by their worker.
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An individual worker who victimises a whistleblower colleague can be named as a respondent in an employment tribunal claim and held personally liable.
There is no qualifying minimum period of service and no compensation limit for an unfair dismissal or detriment claim based on whistleblowing.
Interim relief
Employees have the right to claim "interim relief" which is a form of injunction from the Employment Tribunal ordering that an employee must be reinstated (or at least their contractual entitlements met) up to the date of the full hearing of the claim. Such a claim will succeed if the tribunal takes the view that an employee has a "pretty good chance" of success in their claim. A claim for interim relief must be made within 7 days of the date of termination of employment so you should seek legal advice urgently if you think you may wish to make this claim. Extensions of time are unlikely to be available. There is no need to notify ACAS of an interim relief claim, but you do need to notify the linked unfair dismissal claim - see below for further details.
Guidance for whistleblowers
Genuine concerns regarding illegal, unethical or dangerous practices should be raised internally with your employer in the first instance. Check if your employer has a whistleblowing policy and ask for the matter to be treated confidentially. You will not have a say in how your concern is dealt with. Your employer should keep you informed about any action taken, but may not provide you with much detail where they need to preserve the confidence of others.
You can provide information to a statutory regulator or other ‘prescribed person’ (such as HMRC, the Office of Fair Trading and the Charity Commission), without first telling your employer, if you reasonably believe (1) the information is substantially true and (2) the default falls within that body’s remit.
Wider disclosure of information is difficult to justify. Disclosure to the media or police will only be protected in exceptional cases and if no payment is received for the information.
The safest way to make a disclosure is to put it in writing. Your letter should actually convey facts/information that are linked to and in support of the specified malpractice. Merely making a general allegation of unlawful behaviour or an unsubstantiated
expression of opinion is not a protected disclosure. Neither is threatening to make a disclosure, or gathering evidence if it involves misconduct.
Guidance for employers
Implement a whistleblowing policy outlining the procedure for staff to confidentially report any concerns regarding illegal, unethical or otherwise unacceptable conduct.
Ensure workers can bypass the level of management where the problem may exist.
the policy internally and provide appropriate training on its principles and operation.
Make clear that victimisation of a whistleblower will result in disciplinary action.
Investigate disclosures promptly and keep the whistleblower informed as to progress where possible – silence may cause the whistleblower to disclose externally.
Confidentiality clauses do not prohibit the making of a protected disclosure and taking action against a whistleblower for breach of confidence may amount to unlawful detriment.
Issuing a claim – deadlines and time limits
Before issuing a claim in the employment tribunal, an employee should generally submit a written grievance or (where they have been dismissed) an appeal the parties should both comply with the ACAS Code of practice. Unreasonable failure to do so may increase or reduce the compensation awarded by up to 25%.
A claim for automatically unfair dismissal must be notified to ACAS within three months of the date of termination of employment and strict time limits will apply thereafter.
A claim for detriment must be notified to ACAS within three months of the act, or failure to act, to which the complaint relates. Where there has been a series of similar acts or failures to act, the claim must be brought within three months of the last of this series.
Generally, no claim can be submitted to an employment tribunal without an ACAS early conciliation certificate. Once a claimant notifies ACAS of the dispute, there will be an extension of time for submitting the claim. The clock stops running and only starts again if settlement cannot be reached or the parties do not wish to conciliate upon receipt of the early conciliation certificate by the claimant. You will always have at least one month from the date of the ACAS early conciliation certificate in which to lodge a claim.