What is whistleblowing?
Whistleblowing is when you make a disclosure that is in the public interest. You can report your employer’s unlawful practices to an approved body and there are laws in place to protect you from retaliation by your employer. The Public Interest Disclosure Act 1998 (PIDA) gave effect to new rights which were created by amending the Employment Rights Act 1996 (ERA 1996). You have further protection under the Enterprise and Regulatory Reform Act 2013. Part IVA ERA 1996 deals with protected disclosures. Sections 43A to 43L tell you who is protected, what information is protected and how you should blow the whistle so that you qualify for legal protection. Section 103A ERA gives you the right not to be unfairly dismissed if the reason (or principal reason) is that you have made a “protected disclosure”, and Section 108(3)(ff) removes the need for two years qualifying service to claim unfair dismissal under this head. Section 47B ERA 1996 gives you the right not to be subjected to any detriment on the grounds that you have made a “protected disclosure”.
- Any confidentiality provisions in your employment contract which stops you from making a disclosure are void – Section 43J
- There is no limit to the amount of compensation you can claim – Section 124(1A), and you can apply for interim relief – Section 128(1).
If you suffer a detriment because of whistleblowing, you should start the process for asserting your rights by raising a Grievance. If you have been dismissed, you assert your rights by first writing a Letter Before Claim to your employer and contacting the free ACAS Early Conciliation service.
What is a protected disclosure?
Under Section 43B(1), a qualifying disclosure is any disclosure of information which, in the reasonable belief of the worker making it, shows that;
- a criminal offence has been committed, is being committed or is likely to be committed.
- a person has failed, is failing or is likely to fail to comply with a legal obligation to which he is subject
- a miscarriage of justice has occurred, is occurring or is likely to occur
- the health and safety of any individual has been, is being or is likely to be endangered
- the environment has been, is being or is likely to be damaged; or
- information tending to show any matter falling into any one of the preceding paragraphs has been, or is likely to be, deliberately concealed
Who must the protected disclosure be made to?
For your whistleblowing to be protected, you must make it in accordance with the provisions of sections 43C – 43H which set out the categories of people to whom you must make your disclosure. These are;
- Your employer or another responsible person.
- A legal adviser in the course of obtaining legal advice.
- If you work for the Crown, to a Minister of the Crown.
- In certain circumstances, a third party who is not connected to your job.
It is very important that you make your disclosure to the right person. In Dr Chris Day v (1) Lewisham and Greenwich NHS Trust and (2) Health Education England  the Employment Appeal Tribunal (EAT) said that disclosures made by a junior doctor to the organisation that arranged his placements at the hospital which employed him, were not protected disclosures under whistleblowing law.
Dr Day was a junior doctor in training employed by the Trust at Lewisham hospital. His training placements were arranged by Health Education England (HEE), which also paid the Trust part of his salary. Dr Day made various disclosures to the Trust regarding patient safety, and repeated them to HEE, which he claimed led to him suffering detriments. He brought employment tribunal proceedings against the Trust and HEE. An employment tribunal struck out his detriment claim against HEE, as their relationship did not come within the extended definition of ‘worker’ under section 43K ERA 1996.
The EAT rejected Dr Days argument that Article 10 of the European Convention of Human Rights required that whistleblowing legislation should be interpreted purposively to apply to his relationship with HEE. Whilst a purposive approach to whistleblowing is appropriate, the circumstances in which legal protection applies are set out in statute, and there was no need here for additional protection. The lack of protection for disclosures made to third-party bodies such as HEE was not a ‘lacuna’ in the law, more that the Doctor’s relationship with HEE was well outside the category of workers and relationships protected by it.
What you will need to prove
In Knight v London Borough of Harrow  the Employment Appeal Tribunal said that once it is established that there is a protected disclosure, you would have to prove that;
- You have been subjected to a detriment
- The detriment is because of an act or a deliberate failure to act by your employer
- Your employer behaved in that way because you made a protected disclosure
To start the process of a claim, you must first raise a grievance with your employer. If your grievance and appeal are unsuccessful you should make an application to the free ACAS Early Conciliation service who will help you in trying to reach a resolution with your employer. If Early Conciliation is unsuccessful, ACAS will give you a Conciliation Certificate. It is only when you receive the conciliation certificate that you can file a claim in the employment tribunal. Do not forget that you have a time limit of 3 months less one day to file a claim in the employment tribunal.
How to write a grievance that gets you what you want
How to write a grievance about bullying and harassment at work
How to write a grievance about changes to your employment contract
How to write a grievance about discrimination at work
How to write a grievance about the behaviour of a colleague, manager or supervisor
How to write a grievance about unauthorised deductions from your wages or salary
Disciplinary action and capability
Discrimination at work
Surviving a workplace suspension
Health and Safety Dismissal
How to fight dismissal on Probation
How to survive a criminal charge, conviction or caution at work
Social Media and Unfair Dismissal
Surviving a disciplinary investigation at work
Surviving Capability and Performance Management
The Disciplinary Hearing
DOCUMENTS, FORMS AND LETTER TEMPLATES
Best of the web
GOV.UK – Blowing the whistle to a prescribed person – List of prescribed persons and bodies
– The Public Interest Disclosure Act
ACAS – Whistleblowing in the workplace
Information Commissioners Office – Protection for Whistleblowers
Some support organisations
Public Concern at Work – The Whistleblowing Charity
Whistleblowing Helpline – NHS and Social Care
This resource is published by Employee Rescue Limited. Please note that the information and any commentary on the law contained herein is provided free of charge for information purposes only. The information and commentary does not, and is not intended to, amount to legal advice. Employee Rescue accepts no responsibility for any loss occasioned to any person acting or refraining from action as a result of the material contained in this update. Further specialist advice should be taken before relying on the contents of this summary. No part of this summary may be used, reproduced, stored in a retrieval system or transmitted in any form without the prior permission of Employee Rescue Ltd.