August 8, 2018

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.

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About the author 

James Rowland

James is the Commercial Director at Neathouse Partners and regularly writes articles surrounding issues in HR & Employment Law. Outside of the office, James is a keen Cricketer, playing in the Cheshire League for Nantwich CC. He also loves going to watch his football team, Crewe Alexandra. Feel free to connect with James on LinkedIn.

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