Making a disclosure
The types of wrongdoing that can form a whistleblowing disclosure are:
- That a criminal act is being committed
- That health and safety is being endangered
- That there is risk or actual damage to the environment
- That there is a miscarriage of justice
- That a legal obligation is being breached
- That any of the above is being covered up
There are various criteria that need to be met in the making of the disclosure:
- The whistleblower must have a reasonable belief that any of the above acts of wrongdoing are taking place, have taken place, or are likely to take place
- The disclosure must be made to an appropriate person which is either the worker’s employer, or a prescribed person as set out in the legislation. This includes organisations such as the Health & Safety Executive and the Charity Commission
- A disclosure will only be protected under the law if it is made to the press in exceptional and specified circumstances
- The whistleblower must make the disclosure in the public interest (whether a disclosure is in the public interest will depend on various factors including: the number of people affected; nature and importance of the interests affected; nature of wrongdoing; and identity of the alleged wrongdoer).
The last criterion was added in 2014 and the relevant factors were identified in the recent Court of Appeal’s decision in Chesterton Global Ltd v Nurmohamed.
Protections for whisteblowers
If a whistleblower is dismissed because of whistleblowing they have various important legal protections:
- They can bring a claim of unfair dismissal without the two years’ service that is normally required
- They can apply to the Employment Tribunal for interim relief i.e. to be reinstated to their job pending the full hearing of their case
- There is no cap on the damages that can be awarded to them, although damages must reflect their actual losses
- They are entitled to compensation for injury to feelings in the same way as in other discrimination cases
Whistleblowers may also bring tribunal claims if they are subjected to detriment and uncapped damages including compensation for injury to feelings will equally apply.
The Tribunal process must be started within 3 months of the date of the treatment about which the complaint is made i.e. through ACAS Early Conciliation.
It is strongly advisable that employers should have a whistleblowing policy to which whistleblowers can be directed and should seek to foster an environment where the raising of genuine concerns by workers is encouraged. Organisations that fundraise from the public are required to have a policy under which concerns about fundraising practices can be raised (see Code of Fundraising Practice, updated 08/08/2018)
Workers cannot be prevented from whistleblowing by any kind of “gagging” clause – whether in their contract, or in a settlement agreement.
This page was updated on the 7th November 2018.
This information is necessarily of a general nature and doesn’t constitute legal advice. This is not a substitute for formal legal advice, given in the context of full information under an engagement with Bates Wells.
All content on this page is correct as of October 24, 2018.