We hear about workers whistleblowing but what does this mean in employment law? The relevant provisions are set out in the Public Interest Disclosure Act 1998 and the Employment Rights Act 1996 but here is a summary of how to make a protected disclosure.
To be a protected disclosure it must be:
- A qualifying disclosure;
- Be in the public interest; and
- Be made to an appropriate or prescribed person or body.
A qualifying protected disclosure is made by a worker when they reasonably believe that there is serious wrongdoing in the workplace. This might relate to illegal activity, dangerous health and safety practices, reporting bullying and harassment of others or breaches of prescribed codes of conduct mandated by regulatory bodies such as the Financial Conduct Authority.
To be in the public interest, the worker must have reasonable grounds for believing the information disclosed will have or is likely to have an impact on other people. A purely personal grievance most likely will not satisfy this criterion.
Finally, the protected disclosure must be made to an appropriate or prescribed person or body. This can be either the whistleblower’s employer, or to any other person within the company or organisation whom they reasonably believe to be solely or mainly responsible for the alleged failure. It may be protected if made to an outside person or agency too, but they will need to make sure it is to the correct person or body for their particular concern or complaint. For example, health and safety issues should be reported to the Health and Safety Executive, or insider trading breaches to the Financial Conduct Authority and/or Prudential Regulatory Authority.
Finally, who can make a protected disclosure? A worker can which includes employees, agency workers, apprentices, basically anyone who provides services but who is not a genuinely self-employed person.
If you have made a protected disclosure then you have the right not to be subjected to a detriment and the right not to be unfairly dismissed because of your protected disclosure.
With that all said, whistleblowing claims can be legally complicated so it is best to get advice if you can from an employment law specialist. I represented the Claimant in the Court of Appeal in Kong v Gulf International Bank (UK) Limited.
This blog was written by Anita Vadgama, Partner at didlaw who specialises in whistleblowing cases.
