FAQ's
What is whistleblowing?
“Whistleblowing” is the common term for what in law are described as protected disclosures or “public interest disclosures”.
A disclosure is any disclosure of information (which can include information already known to the employer).
What rights do whistleblowers have?
A person who makes a protected disclosure has two main rights under the relevant legislation:
- Not to be subjected to any detriment by their employer on the ground of having made a protected disclosure.
- Not to be dismissed by their employer for having made a protected disclosure.
If the employer breaches either or both of these rights the worker can bring a claim in the employment tribunal.
A claim relating to treatment during employment is a claim for “unlawful detriment” on the grounds of a protected disclosure. It is not necessary to leave employment to bring such a claim.
Where the employee is dismissed the claim is for unfair dismissal. Where the reason for the dismissal is that the worker made a protected disclosure the dismissal is automatically unfair. Unlike “ordinary” unfair dismissal claims, there is no qualifying period of employment required and nor is there any limit on the amount of compensation that can be awarded.
It is possible to bring a claim for detriment and dismissal where the worker is adversely treated and then dismissed.
Dismissal includes constructive dismissal (see below).
What is a protected disclosure?
A protected disclosure is:
- any disclosure of information
- which, in the reasonable opinion of the worker making the disclosure,
- tends to show a relevant failure (i.e. a criminal offence; breach of a legal obligation; a miscarriage of justice; health and safety danger; environmental damage or deliberate concealment of information relating to any of the above)
- (unless a criminal offence is committed in making the disclosure); and
- the disclosure is made in good faith;
- to an appropriate person (which includes the employer or to someone else in accordance with a procedure whose use is authorised by the employer)
Disclosures beyond the employer may also be protected, but different rules apply. A worker considering such a disclosure is recommended to take legal advice first.
Why are whistleblowers given these rights?
The purpose behind the legislation is not to give workers compensation claims. Indeed anyone who made a disclosure with a view to obtaining compensation would be likely to fail with a claim. The law that introduced the rights was called the Public Interest Disclosure Act 1998, which emphasises the underlying rationale behind the legislation. It was recognised that employees are often well placed to report wrongdoing and felt necessary to ensure that those who did so could not be victimised as a result. The hope is that the possibility of claims will encourage employers to have proper policies to deal with whistleblowers and that such policies will be followed in practice.
Are there limits on the rights of a whistleblower?
There are clear limits on the rights of a whistleblower. For example:
- In order to be protected a disclosure must be made to an appropriate person. This will generally be the employer, but may be a regulator and in exceptional circumstances other disclosures may be protected. The key point is however that disclosures to an employer (or in accordance with an employer’s procedure) are most likely to attract protection.
- A worker will not be protected if they breach their obligations to their employer or otherwise act improperly, even if this is in an attempt to verify or prove the truth of their disclosure.
- While employers must not lightly reveal the identity of a worker who makes a disclosure there is no absolute guarantee that a worker who makes a disclosure will be able to retain anonymous.
- While a complete failure to investigate a reasonable allegation or a sham investigation may be unsustainable, a worker does not have the right to a particular form of investigation nor a particular outcome.
Is there any advice for a person who is considering blowing the whistle or who has done so?
From our experience of acting for many whistleblowers we have the following advice:
- If your employer has a whistleblowing policy , unless there is a very good reason not to do so, follow it and keep a contemporaneous record that you are doing so.
- Do not try to investigate yourself, in particular do not take any steps that could be regarded as a breach of your obligations to your employer or otherwise improper.
- Be reasonable and be seen to be reasonable.
- Understand that the person against whom you make an allegation has rights as well, including to a fair investigation.
- Be discreet, do not disclose to anyone it is not appropriate to disclose to.
- Understand that what you are doing is potentially highly stressful and that it is unlikely that you will be able to remain anonymous.
- If you are unsure of your position consider taking legal advice.
This is not intended to discourage whistleblowers. The introduction of the legislation is a reflection of the acceptance of the public interest in ensuring that all employers comply with the law and that whistleblowing is to be encouraged. While no litigation is ever straightforward, the law does provide real rights and tribunals have stated expressly that a breach of the whistleblowing law by an employer is to be regarded as very serious.
What are the time limits for bringing a claim?
Short time limits apply. A claim needs to be brought within three months less a day of the date of dismissal or the date of the detriment.
What is constructive dismissal?
Constructive dismissal is where a worker resigns in response to a fundamental breach of a term of their contract of employment by the employer. The term breached may be an express term or an implied term (such as the implied duty of mutual trust and confidence).
Resigning with a view to claiming constructive dismissal is a very serious step and we recommend that you take legal advice before doing so.
How is compensation assessed?
Compensation is assessed according to legal rules. Some of the main points are as follows:
- The principle behind compensation is to compensate for legally recoverable losses, not to punish the employer, however bad its conduct may have been.
- Compensation for injury to feelings (generally between £500 and £25,000) is available for detriment claims, but not for unfair dismissal claims.