Whistleblowing

What is Whistleblowing?

Whistleblowing refers to the situation where an individual brings information regarding a wrongdoing to the attention of their employer or organisation. This is often known as ‘blowing the whistle’ in an informal sense, and is more formally referred to as “making a disclosure in the public interest”. The relevant legislation appears in the Public Interest Disclosure Act 1998.

Who is protected?

• employees (those who work or worked under a contract of employment);
• workers (those who work or worked under a contract of employment or any other contract where they undertake to do or perform personally any work or services for another party who is are not a client or customer of any business carried on by the worker).

Genuinely self employed people running their own businesses would thus be excluded from protection.

What is protected?

Only protected disclosures are protected, namely:

• it must be a disclosure of information;
• it must be a qualifying disclosure (one made in the public interest and which tends to show one or more of the 6 relevant failures has or is likely to occur;
• it must be made in accordance with one of the 6 specified methods of disclosure.

A. Disclosure of information.

The disclosure must convey facts as opposed to make an allegation.

B. Qualifying Disclosure

Tends to show that in  the reasonable belief of the worker one or more of the following:

• that a criminal offence has been committed, is being committed or is likely to be committed;
• that a person has failed, is failing or is likely to fail to comply with any legal obligation to which he is she is subject; or
• that a miscarriage of justice has occurred, is occurring or is likely to occur; or
• that the health & safety of any individual has been endangered, is being or is likely to be endangered; or
• that the environment has been damaged or is being or is likely to be damaged.

To be qualifying the person making it must have a reasonable belief that it is made in the public interest. This was introduced to try and exclude private employment disputes between the employer and the employee that did not engage the wider public interest.

C. Method of Disclosure.

A disclosure can be made to any one of the following:

• Employer
• Legal Advisor
• Minister of the Crown

These are subject to the least stringent conditions.

• Person responsible for the failure – For example, a nurse working for an agency (her employer) complains to the care home (the third party) where she is placed and works about patient care at the home. The worker must show that he or she reasonably believed that the relevant failure related to the conduct of the third party or to a matter in which the third party had legal responsibility.
• Prescribed persons. A disclosure can be made to a prescribed person or body charged with overseeing and investigation of malpractice within certain types of organisation. For example, the FSA, the Inland Reveune  or the Health and Safety Executive.

These are subject to intermediate level of conditions.

• External disclosures

This includes the Police, the Press, MP’s, Union Representatives for example. The worker must reasonably believe that the information disclosed is substantially true; the worker must show that he or she did not make the disclosure for personal gain; in all the circumstances of the case it must be reasonable for the worker to make the disclosure an the worker must satisfy at least 1 of 3 further conditions namely: (1) at the time of the disclosure, the worker reasonably believes that he or she will be subjected to a detriment by raising the concern with the employer; or (2) where no person is prescribed, the worker reasonably believes that it is likely that evidence will be concealed or destroyed if he or she makes a disclosure to the employer; or (3) the worker has previously made a disclosure of substantially the same information whether (i) to his or her employer or (ii) to the prescribed person.

These are subject to the most stringent conditions.

• Exceptionally serious failures

The worker reasonably believes that the information disclosed is substantially true; the worker does not make the disclosure for personal gain; the relevant failure is of an exceptionally serious nature and in the circumstances of the case it is reasonable for him or her to make the disclosure.

Dismissal for “whistle blowing” is an automatically unfair dismissal. The Public Disclosure Act 1998 removes the ceiling on the compensatory award in a dismissal case for protected disclosure and provides for a higher level of additional award to apply where there is a failure to reinstate or re-engage.