Whistleblowing Legal Advice UK | Employment Law Advocates London

Whistleblowing

Whistleblowing, as public interest (or protected) disclosures are more commonly known can take three forms. A protected disclosure can be made in relation to five issues; health and safety, criminal acts, failure to comply with a legal obligation, miscarriages of justice and damage to the environment. There is also a prescribed format for a disclosure to be a qualifying disclosure, you can’t just tell your friend and claim to have made a protected disclosure. A protected disclosure can be made by anyone who is a worker or an employee.

A qualifying disclosure

The first requirement is, naturally enough, that you believe the information you are disclosing is true. You can’t just accuse your employer of a fictitious criminal offence and then rely on this as a protected disclosure.

The second is that the act which is being disclosed must have happened, be ongoing or be likely to occur. So for instance, if your employer requires a licence to carry out their operations and this licence is due to expire and they have not applied to renew the licence then it could (potentially) be said that they are likely to fail to comply with a legal obligation.

It is also necessary to make the disclosure to the correct person. As a rule any disclosure should be made to the employer, although where someone other than the employer is responsible for the act being disclosed then the disclosure should be made to them. It is also possible to make a protected disclosure to the following:

A legal advisor in the course of obtaining advice;
A minister of the crown (although only in specific circumstances)
A prescribed person (such as the Health and Safety Executive or an Ombudsman)

You must also ensure that whilst making a disclosure, you do not break the law as this will prevent it from being a qualifying disclosure. If you make money from making a disclosure, this can also prevent it from qualifying.

Detriments/dismissal

The law gives a considerable level of protection to workers who make protected disclosures. The principle being that the areas which attract protection are sufficiently important that a worker should be able to disclose them without fear of retaliation from their boss. It is against employment law for an employer to subject a worker to any detriment because they have made a protected disclosure. Detriment is broadly defined and can include an act or a deliberate failure to act by the employer. Typical detriments will be disciplinary proceedings, demotion (or being overlooked for promotion) or reassignment to menial duties, but many more acts or omissions can amount to a detriment.

The obvious detriment not mentioned above is dismissal. This is also prohibited and dismissal on the grounds of making a protected disclosure makes the dismissal automatically unfair. Further, and possibly more importantly, you do not need one year’s service if you are dismissed for this reason. Whether you are subjected to a detriment or dismissed, you can bring a claim to a tribunal and be awarded compensation, provided you are able to establish that you made a qualifying disclosure and that this was the reason for the treatment you have suffered.

Remedies

The remedies available for being subjected to a detriment include a declaration to that effect and possibly compensation (although this is not guaranteed). Compensation is assessed in terms of any loss actually suffered (for instance from being overlooked for a promotion) and what the tribunal considers to be a fair result in the circumstances.

If the detriment is dismissal then the compensation is the same as is typically awarded for any other unfair dismissal. In addition, it may be possible to obtain interim relief where the reason for dismissal is the making of a protected disclosure. An order for interim relief is an extreme sanction and is awarded only rarely. When ordering interim relief the Tribunal orders that the contract be continued, that is that the worker continues to be paid for the period that the tribunal proceedings are ongoing. The tribunal can order that the worker continues to work for their employer whilst this happens. To obtain interim relief it is necessary to act very quickly (within seven days).

If you believe that you have made, or have good reason to make, a protected disclosure and would like advice on your particular circumstances, please contact us.