Whistleblowing

whistleblowing

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 [2016] 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 [2003] 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.

 

 

Resources available

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

 

Disclaimer 

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.

Case Study

In the Scottish case of Collins v First Quench Retailing Ltd [2003], Ms Jacqueline Collins was awarded £179,000 from her employers when the off-license she managed was robbed. Ms Collins had been the manager of Victoria Wine, run by First Quench Retailing, for about ten years. When Mrs Collins started in the shop she had been concerned about security and raised this with management. Since 1977 there had been 13 reported crimes at the shop, including five thefts, one minor assault, one serious assault and one assault with intent to rob. There were two armed robberies in 1994 and four... Read More
Ms Jacqueline Collins was awarded £179,000 from her employers when the off-license she managed was robbed.Collins v First Quench Retailing Ltd
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