What is Whistleblowing?
Whistleblowing is when a worker brings to their employer’s attention information regarding wrongdoing in the workplace. Under the Public Interest Disclosure Act 1998, workers are protected from unfair treatment or dismissal for making a protected disclosure.
Who Is Protected?
Under the legislation, workers are protected if they make a qualifying protected disclosure.
With regards to whistleblowing, the definition of worker is expanded further than its normal meaning in employment law. A worker could be:
- An employee
- Trainees, such as student nurses
- Agency workers
- Members of Limited Liability Partnerships
Employees are protected under whistleblowing legislation from the moment they start work with you, they do not need two years to bring a claim for unfair dismissal in relation to whistleblowing.
Additionally, there is no cap on the amount of damages payable in whistleblowing claims.
However, if an employee makes a claim about whistleblowing in bad faith, then their compensation award will be reduced by the tribunal by 25%.
When Will A Whistleblower Be Protected?
A whistle-blower will not automatically qualify for protection under the law. Whether or not they qualify will be dependent upon:
- Whether or not they have made a qualifying disclosure;
- Whether or not the employee has actually disclosed any information – allegations or just gathering evidence will not suffice;
- The employee having reasonable belief that the information shows one of the relevant failures;
- The employee having a reasonable belief that making the disclosure is in the public interest.
A disclosure may concern new information, or it may involve drawing a person’s attention to information to which they were already aware of. A disclosure must disclose facts and must go further than just allegations or a statement.
But What Disclosures Will Be Protected Under The Law?
An employee will be making a qualifying disclosure under the law if they report one of the following relevant failures:
- A criminal offence
- A health and safety issue
- A damage or risk of damage to the environment
- A miscarriage of justice
- The company is breaking the law
- An attempt by someone to cover up wrongdoing
When will An Employee Make A Disclosure?
An employee can make a qualifying disclosure at any time. Case law has shown that an employee will be protected if:
- They make the disclosure during employment;
- They make the disclosure during their employment with a previous employer;
- They make a disclosure after their employment has terminated.
What The Law Means For Employers
The whistleblowing legislation does not put any obligations on employers to encourage whistleblowing or to implement a whistleblowing policy.
The law only requires employers not to treat any employees detrimentally for making a protected disclosure.
While there is no legal requirement to have a whistleblowing policy, it is always best practice to have one as it shows an employer’s willingness to listen to any concerns that their employees may have.