Focus On: Whistleblowing

The Public Interest Disclosure Act 1998, protects workers who ‘blow the whistle’ highlighting wrongdoing by their employer. The Act makes provision about the kinds of disclosures that may be protected; the circumstances in which such disclosures are protected; and the persons who may be protected; Alison Wallace looks at the issues.

In general, workers should be able to make disclosures about wrongdoing to their employer, so that problems can be identified and resolved quickly within organisations. Some employers have internal procedures that can be used for the purpose of making disclosures.

An employee who feels driven to expose malpractice should seek professional advice.

If an objective arbitrator judges the reported ‘wrongdoing’ to be less serious than that claimed and there is found to be insufficient supporting evidence, the whistleblower may expose themselves to discipline by the employer, particularly if they go straight to the press and this may leave them unable to make a claim for protection within the remits of the Act.

An employer who is informed of malpractice by an employee should take immediate action and communicate this to the whistleblower.

Employers that have whistleblowing procedures in place, which support disclosures that are made in good faith by employees, will be better placed to manage a public disclosure should one occur.

Protection against unfair dismissal or being subjected to a detriment

Employees who are protected by the provisions may make a claim for unfair dismissal if they are dismissed for making a protected disclosure. Workers who are not employees may not claim unfair dismissal; however, if their contract has been terminated by the employer for reasons of a public disclosure, they may make a complaint that they have been subjected to a detriment.

What can be disclosed?

It should be noted that in making a disclosure the worker must have reasonable belief that the information disclosed tends to show one or more of the offences or breaches listed above ('a relevant failure'). The belief need not be correct. It might be discovered subsequently that the worker was in fact wrong, but the worker must show that the belief was held to be true, and that it was a reasonable belief in the circumstances at the time of disclosure.

Circumstances in which disclosures are protected (a 'protected disclosure')

The only additional requirement on the worker is that they should act in good faith. No other requirement is necessary to qualify for protection. Disclosure to the employer will in most cases ensure that concerns are dealt with quickly and by the person who is well placed to resolve the problem. In some small companies, this may be the owner-manager. But often an authorised procedure will be helpful.

An existing company procedure may suffice, or such procedures could perhaps be adopted, for example to facilitate confidential disclosures by workers. Internal procedures that are simple to use, readily accessible and which workers are encouraged to use are more likely to result in disclosure of concerns to the employer first, rather than externally. Employers will wish to consider the best way to secure trust and confidence in such procedures to ensure that they will be used, perhaps by involving the workforce, or their representatives in agreeing the details.

Making a qualifying disclosure to a prescribed person

A list of prescribed persons, the description of matters for which they are prescribed and contact details, are published by the DTI and are updated from time to time. These persons have statutory functions and can provide authoritative advice and guidance to workers about matters properly disclosed to them.

Making a qualifying disclosure to a legal adviser

Making a qualifying disclosure about an exceptionally serious failure

It must be reasonable for the worker to make the disclosure in view of all the circumstances, having regard in particular to the identity of the person to whom the disclosure is made.

Note that the relevant failure must be exceptionally serious. This will be a matter of fact, and not simply a matter of the worker reasonably believing it to be exceptionally serious.

Making a qualifying disclosure more generally

In addition, one or more of the following requirements must be met:

Finally, it must be reasonable for the worker to make the disclosure. An Employment Tribunal will decide whether the worker acted reasonably, in all the circumstances, but in particular will take into account:

An employee who did not allow their employer the opportunity to remedy its shortcomings before they blew the whistle may find that subsequent disclosure was not protected.

Disclosures about health and safety matters

The provisions provide protection to any worker who discloses information about a health or safety danger in accordance with the provisions. Clearly, where there is a recognised health and safety representative present, the worker should normally tell them about the problem, as it is part of the representative's role to raise such matters with the employer. The existing health and safety provisions in the Employment Rights Act 1996 and the provisions introduced by the Public Interest Disclosure Act 1998 are therefore complementary.

Contractual duties of confidentiality

Many companies carefully guard their confidential information but no employee should be disciplined for disclosing serious breaches of the law or company policy. Employers should consider their grievance procedure and whether that is suitable where an employee wishes to make a protected disclosure. The alternative is to have a tailored procedure for disclosures as this will not only detect but deter wrongdoing and reduce the risk of legal claims (whether or not under the Act) by making it safe to raise concerns internally, signalling that unlawful reprisal will not be tolerated, and reducing risk that public disclosures will be protected.

Employment Tribunals and remedies

A complaint should normally be made within three months of the dismissal or detriment. For unfair dismissal claims, interim relief is also available, provided the claim is made within seven days of the effective date of the termination of employment.

Where an Employment Tribunal finds that a complaint of unfair dismissal is justified, it will order re-instatement or re-employment, or the payment of compensation. Where a worker complains that they have been subjected to a detriment and the Employment Tribunal finds the complaint well founded, it will make a declaration to that effect and may order the payment of compensation. There is no limit on the amount of compensation, which can be awarded.