Whistleblowing arises where you bring information about a wrongdoing to the attention of your employer or a relevant organization. This is commonly referred to as ‘blowing the whistle’ and it is more formally known as ‘making a disclosure in the public interest’ which is a protected disclosure. The relevant legislation appears in the Public Interest Disclosure Act 1998. 

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Even where there are contractual duties of confidentiality to an employer, there can be no provision within a contract of employment that precludes any employee or worker from making a protected disclosure.  Any contractual term that seeks to stop a worker from making a protected disclosure will be held to be void – and therefore unenforceable.

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Protected disclosures can be made by the worker after their employment has ended and even if the employee is disclosing the same information multiple times to someone who is already aware of it.

 

What is a protected disclosure?

​To qualify for protection, you must have a “reasonable belief ” that a wrongdoing has occurred, or is likely to occur, and that it is in the public interest. It is not necessary for the wrongdoing to have actually occurred, but that you believe it to be true.

 

To qualify as a protected disclosure, it also needs to relate to statutory category of “failure”, namely;

-a criminal offence;
-a breach of legal obligation;
-a miscarriage of justice;
-a danger to health and safety of an individual;
-damage to the environment or related to a deliberate attempt to conceal any of these matters;
-that information relating to any of the above has been, or is likely to be deliberately concealed.

 

The definition of what amounts to disclosure is essentially “any information”, and this can arise from an amalgamation of several communications, even if one or more would not qualify. A disclosure of information can also take place where the information is provided to a person who is already aware of that information. You need to convey facts of events when providing information- allegations are not the same thing.

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Personal grievances (for example bullying, harassment, discrimination) are not covered by whistleblowing law, unless your particular case is in the public interest. This should instead be dealt with in the first instance by lodging a grievance.

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What is public in the public interest?

​The legislation does not define "public interest", and so it is left to the courts and tribunals to lead the way with their interpretation. This will depend on all the facts of the case, and sheer numbers of workers affected may not always be enough in itself.

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The courts have held that there are 4 factors relevant to the public interest test:

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• The number of individuals whose interests the disclosure served. 

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• The nature of the wrongdoing disclosed. 

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• The nature of the interests affected and the extent to which they are affected by the wrongdoing disclosed.

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• The alleged identity of the wrongdoer. 

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The Court of Appeal applies a "reasonable belief" test  to establish whether disclosures are in the public interest.   The belief must be genuine, although there can be more than one reasonable view.  There is no need for it to be the only or the predominant reason for making the disclosure.

 

You are protected as an employee, and so are those who are a worker, this includes freelancers, agency staff, and directors. The categories of workers who are protected is very wide.

 

How do I make a protected disclosure?

 If you need to make a protected disclosure, the following are the general steps that you need to consider:-

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• Does your employer have a whistle-blowing policy? If so, you should follow the process if possible.

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• Make the disclosure to your employer, unless there is good reason not to. If you believe your employer will either cover it up, treat you unfairly, or they have not addressed the issue after you have already notified them, then you can make the disclosure to a “prescribed person” who will be independent to your employers.

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• Keep a written note at all times as evidence of your disclosure and to whom. This includes where you are making the initial disclosure in writing, and the exact wording that you use.  This is very important because a Tribunal will undertake an analytical test to interpret the wording that you use that you say constitutes a protected disclosure.

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​What does protected from detriment mean?

​If you have made a protected disclosure, you have the right not to be subjected to any detriment from your employer by any act, or any deliberate failure to act, because you have made a protected disclosure.  This specifically includes the right not to be unfairly dismissed – whether this is disguised as a redundancy, gross misconduct, or otherwise as a result of you making a protected disclosure.

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Other detriments you may face once you have made a disclosure include:

• being denied promotion;

• a demotion;

• being set unreasonable targets and/or being required to work longer hours;

• being put on a performance process;

• receiving less salary or other benefits;

• being bullied or harassed;

• where you are ostracised:

• blocking access to resources;

• suspension;

• disciplinary sanction;

• denial of training;

• victimisation;

• failure to provide an appropriate reference.

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The onus is on your employer to prove that you did not suffer a detriment due to the disclosure, and that it was because of another reason, such as your performance or conduct.

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The detriment must be more than “just related” to the disclosure. There must be a causative link between the protected disclosure and the reason for the unfair treatment. Accordingly, the disclosure must be the “real” or “core” reason for the detriment you have suffered.

 

Are there any time limits?

​Unlike in unfair dismissal claims, there is no qualifying period of employment required in making a whistleblowing claim.  You do not have to be employed for two years and there is no maximum cap on a tribunal award if you win your case.

 

There are important time limits in making a claim. It is necessary to lodge the claim with ACAS under their early conciliation process within 3 months less one day from the date of the act complained of (although you can have a situation where there is a continuing course of conduct by your employer, in which case the time limit will only run from the end of that period).

 

The lodging of the claim with ACAS is a preliminary step that must be taken before proceedings can actually be issued in the employment tribunal - we explain this for you here.   If you are unfairly dismissed an application can also be made to stay their decision to dismiss you to protect your employment rights and make sure you receive normal salary pending the outcome of the trial at tribunal.  This is known as an application for interim relief.  An application for interim relief has to be made within 7 days of your dismissal if that is the outcome of the disciplinary.  This is why you must not delay in obtaining legal advice promptly, and you do not await the outcome of a disciplinary before you seek advice.

 

If a case goes to a tribunal and the tribunal thinks the disclosure was made in bad faith (for example, if the disclosure is not made with honest motives and/or where it is made for personal gain), the tribunal will have the power to reduce your compensation by up to 25%.

 

In summary, you will have to show three things to win at tribunal:

• that you made a qualifying disclosure and had reasonable belief in doing so;

• that you followed the correct disclosure procedure;

• that you were dismissed or suffered a detriment as a result of making the disclosure.

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What compensation can I claim?

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If you have been dismissed because of whistleblowing but you suffered a detriment (for instance bullying) for a period before you were dismissed, you can claim both compensation for unfair dismissal and compensation for the non-financial detriment.

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The Tribunal uses ‘Vento bands’ to decide how much injury to feelings you should be awarded.  There are three bands of compensation for injury to feelings awards.   Amounts in excess of £58,700 can be awarded in the 'most exceptional' cases.

 

The factors that tribunals take into account when making awards for injury to feelings include:

 

• Personal characteristics. If an individual reacted to the discrimination more severely than others, then this should be accounted for regardless of whether the discrimination could be viewed "objectively" as less serious.

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• Any medical condition from which the claimant is suffering.

 

• Factors such as panic attacks, stress, loss of confidence and interference with personal relationships.

 

• The nature of the individual's job and the effect the discrimination has on their career.

 

• The manner in which the employer dealt with any grievance brought by the individual.

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Vento bands (6 April 2024)

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• the lowest band – £1,200 - £11,700 - this will be for the least serious cases, such as where the discriminatory act is a one-off.

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• the middle band – £11,700 - £35,200 - serious cases, but ones where an award in the highest band would not be appropriate.

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• the highest band –  £35,200 - £58,700 - these are the most serious cases, such as where there has been a lengthy campaign of discriminatory harassment which has a profound effect on the victim.

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