Whistle blowing

Workers are protected from dismissal and detrimental treatment from their employers for having made a “qualifying disclosure” about certain types of criminal, illegal and dangerous conduct by their employer. This protection was introduced by the Public Interest Disclosure Act 1998. There is clearly a public interest in giving protection to workers that are prepared to report on their employer’s illegal activities, or breaches of health and safety obligations. Legislation now protects workers from being dismissed, or suffering some sort of detrimental treatment from their employers because of having made a disclosure about their employer’s conduct.

The legislation defines a “qualifying disclosure” as a disclosure of information which, “in the reasonable belief” of the worker tends to show:-

a) That a criminal offence has been committed, is being committed, or is likely to be committed; or

b) That a person has failed, is failing or is likely to fail to comply with “any legal obligation to which he/she is subject,” or

c) That a miscarriage of  justice has occurred, is occurring or is likely to occur, or;

d) That health and safety has been, or being, or is likely to be endangered; or

e) That the environment has been, is being, or is likely to be changed, or;

f) That information ending to show any of the above has been, or is likely to be deliberately concealed.

In order to win a claim under this legislation the whistle-blower has to establish that he/she had a reasonable belief that the information he/she has disclosed does tend to show one or more of acts listed a) to f) above. So long as the belief was “reasonably” held it does not matter if it turns out to be wrong, the legal protection will still apply.

The term “legal obligation” has been interpreted rather broadly. So any breach of contract by the employer will be capable of being the subject of a “qualifying disclosure”. This includes any breach of an employee’s contract of employment with the relevant employer. However, the employer should be able to appreciate from the disclosure that a relevant risk or breach is being brought to his/her attention.

A “disclosure” is not automatically protected. To be protected it must be in one of the ways listed in the legislation. If at all possible the disclosure should be made to the worker’s employer. If it is unrealistic to raise it with the employer, impossible to resolve it by doing so, or it has tried without success, then, the worker can raise it elsewhere. Usually the worker will be expected to raise the disclosure with a relevant authority. For example if the employer has been breaching health and safety requirements the worker should disclose this to the Health & Safety Executive.

A worker will be protected if the disclosure is made in good faith. It is therefore up to the employer to prove bad faith, or an ulterior reason for making the disclosure.

Dismissal of an employee for having made a qualifying disclosure is automatically unfair. In claims of detrimental treatment short of dismissal because of having made a qualifying disclosure the employment tribunal can make an award of injury to feelings, when ordering compensation.

By their nature claims of whistle blowing must be treated very carefully, as they will involve scrutiny of the alleged illegal activity or wrong-doing (whether or not the allegation was correct).