If you believe there is malpractice or wrongdoing in your workplace, then you can ‘blow the whistle’ on the behaviour and be protected from losing your job and/or being victimised by your employer. The Public Interest Disclosure Act 1998 legislates that if you believe there is wrongdoing in your workplace (e.g. your employer is committing a criminal offence), you can report this by following the correct processes, and your employment rights are protected.
The official name for whistleblowing is ‘making a disclosure in the public interest’. Whistleblowers are protected for public interest, to encourage people to speak out if they find malpractice in an organisation or workplace.
Malpractice could be improper, illegal or negligent behaviour by anyone in the workplace.
Protection for blowing the whistle
You are protected as a whistleblower if you:
- are a ‘worker’;
- believe that malpractice in the workplace is happening, has happened in the past or will happen in the future;
- are revealing information of the right type (a ‘qualifying disclosure’);
- reveal it to the right person, and in the right way (making it a ‘protected disclosure’).
‘Worker’ has a special wide meaning in the case of whistleblowing. As well as employees it includes agency workers and people who aren’t employed but are in training with employers. Some self-employed people may be considered to be workers for the purpose of whistleblowing, if they are supervised or work off-site.
To be protected as a whistleblower you need to make a ‘qualifying disclosure’ about malpractice. This could be a disclosure about:
- a criminal offence;
- failure to comply with a legal obligation;
- miscarriages of justice;
- threats to an individual’s health and safety;
- damage to the environment;
- a deliberate attempt to cover up any of the above.
There are some disclosures that can’t be qualifying disclosures. You won’t be protected for whistleblowing if:
- you break the law when making a disclosure (for example if you signed the Official Secrets Act as part of your employment contract);
- the information is protected under legal professional privilege (e.g. if the information was disclosed to you when someone wanted legal advice).
For your disclosure to be protected by the law, you should make it to the right person and in the right way. You must:
- make the disclosure in good faith (which means with honest intent and without malice);
- reasonably believe that the information is substantially true;
- reasonably believe you are making the disclosure to the right prescribed person.
If you make a qualifying disclosure in good faith to your employer, or through a process that your employer has agreed, you are protected. You should check your employment contract to see if your employer has set out a process for whistleblowing.
If you feel unable to make a disclosure to your employer, then there are other ‘prescribed people’ you can make a disclosure to. Anything you say to a legal adviser in order to get advice is automatically protected.
You could make a qualifying disclosure to the person responsible for the area of concern to you. For example, you might raise concerns about health and safety with a health and safety representative.
In some circumstances you may be able to make a disclosure to someone who isn’t prescribed. More information on prescribed persons is contained in the ‘Blowing the Whistle on Workplace Wrongdoing’ article.
In a recent case (Cavendish Munro Professional Risks Management Ltd. v Geduld), the Employment Appeal Tribunal ruled that in order to fall within the statutory definition of a protected disclosure, a disclosure must be an actual disclosure of information as opposed to an allegation or expression of concern.
Mr G became a director, shareholder and employee of CM, a firm of insurance brokers, in March 2007. From early on in his employment there were tensions between him and his two fellow directors, and less than a year later Mr G was dismissed. Prior to his dismissal, his solicitor had sent a letter on his behalf to the two other directors.
As he had been employed for less than a year, it was not open to Mr G to bring a claim of unfair dismissal. He claimed, however, that he had been dismissed because of the letter sent by his solicitor, the contents of which amounted to a protected disclosure. An employee can bring a claim of unfair dismissal for having made a protected disclosure irrespective of length of service and there is no upper limit to the amount of compensation that can be awarded.
The Employment Tribunal upheld Mr G’s claim and awarded him £36,300 in compensation.
CM appealed on the ground that the ET had erred in law. Section 43 of the ERA requires a disclosure of information in order to establish the existence of a protected or qualifying disclosure. This is not the same as simply voicing a concern or objection or making an allegation. The company contended that there was nothing in the solicitor’s letter that could be said to be a disclosure of information.
Mr G argued that the letter did constitute a protected disclosure. Under the ERA, a disclosure can be stating something of which the recipient is already aware. Referring to a general basis of an allegation can constitute information without the need to refer to specific facts.
The EAT upheld CM’s appeal and set aside the ET’s judgment. For a protected disclosure to fall within the statutory definition, there must be disclosure of information. In the EAT’s view, the letter sent by Mr G’s solicitor did not convey information as contemplated by the legislation, let alone make a disclosure. It did not disclose any facts, but was merely ‘a statement of position quite naturally and properly communicated in the course of negotiations between the parties’.