Whistleblowing

Whistleblowing is the common name for the action of a worker who informs an outside person or agency about unlawful conduct of their employer.


Often this will result in the dismissal or unfair treatment of the 'whistleblower' and legal rights have been created to allow some protection and redress where this happens.

Who is protected?

All workers are protected when whistleblowing. The right applies from the first day of the working relationship.


In this context a worker is anyone personally working under a contract or employment and also extends to agency workers and contractors working under the management of an employer.

[section 43K and section 230(3) Employment Rights Act 1996]


A recent case has also held that partners in a Limited Liability Partnership are workers under the whistleblowing definition.

[Clyde & Co v Bates van Winkelhof (2014) UKSC 32]

What action is protected?

The worker must make a 'qualifying disclosure' of information which they reasonably believe is in the public interest and shows at least one of the following types of unlawful behaviour:

  • a criminal offence has been, or is likely to be, committed
  • a person is failing to comply with a legal obligation they are subject to
  • a miscarriage of justice has occurred
  • the health or safety of any individual is, or is likely to be, in danger
  • that the environment is being, or will be damaged
  • that information relating to one of the above topics is being concealed

The disclosure must contain factual details of the issue the whistleblower is raising in order to meet the definition of 'information':

[Geduld v Cavendish Munro Professional Risks Management Ltd (2009) UKEAT 0195]

Who must the disclosure be made to?

The disclosure must be made to a set category of people or authorities depending on the circumstances. These are:

  • the employer or someone with legal responsibility for the conduct of a person;
  • a legal adviser when obtaining advice;
  • a Minister of the Crown where the employer is appointed by the Crown;
  • a person in the lists prescribed by the Secretary of State

For a disclosure made before 1 October 2014:

[Schedule to the Public Interest Disclosure (Prescribed Persons) Order 2003]

[The Public Interest Disclosure (Prescribed Persons) (Amendment) Order 2004]

[The Public Interest Disclosure (Prescribed Persons) (Amendment) Order 2005]

[The Public Interest Disclosure (Prescribed Persons) (Amendment) Order 2008]

[The Public Interest Disclosure (Prescribed Persons) (Amendment) Order 2009]

[The Public Interest Disclosure (Prescribed Persons) (Amendment) Order 2010]

[The Public Interest Disclosure (Prescribed Persons) (Amendment) Order 2012]

[The Public Interest Disclosure (Prescribed Persons) (Amendment) Order 2013]

[The Public Interest Disclosure (Prescribed Persons) (Amendment) Order 2014]


For a disclosure made after 1 October 2014:

[Schedule to the Public Interest Disclosure (Prescribed Persons) Order 2014]

  • another person if the allegation is believed to be true, not made for personal gain, further conditions in section 43G are met and it is reasonable to make the disclosure
  • the public or the press if the disclosure is of 'exceptionally serious failures', if the allegation is believed to be true, not for personal gain, and it was reasonable to make the disclosure

Remedy for unfair treatment

The remedy a whistleblower can use depends on what treatment he or she has suffered.

 

If they have been dismissed then claims for automatic unfair dismissal can be made.

More information on automatic unfair dismissal

 

If the treatment is another sort of detriment then claims can be made.

More information on detriment claims


A claim for interim relief asking for reinstatement can be made by someone dismissed for making a protected disclosure.

More information on interim relief

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