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Whistleblowing


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On 7 October 2019 the European Council approved the Whistleblower Protection Directive. The Directive guarantees high level protection to whistle-blowers across a wide range of sectors including public procurement, financial services, money laundering, product and transport safety, nuclear safety, public health, consumer and data protection. Read more..

See alsoUnfair DismissalUnfair Dismissal Claim Template with Guidance [Misconduct], Unfair Dismissal Claim Template [Misconduct], Unfair Dismissal Claim Checklist [Misconduct],  Automatically Unfair reasons for Dismissal

 

 

What is whistleblowing?

Whistleblowing is when you make a disclosure of information that is in the public interest. You can report certain practices to your employer directly or to an approved body and there are laws in place to protect you from retaliation by your employer. A whistleblowing dismissal will be automatically unfair, and you don’t need two years service to bring a claim in the employment tribunal. You can whistleblow through your grievance or your employer’s whistleblowing policy.  If you are dismissed for whistleblowing you can apply to the employment tribunal for interim relief. Your application must be submitted within 7 days of the date of your dismissal.


The Public Interest Disclosure Act 1998

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 your 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 do you need to prove?

In Knight v London Borough of Harrow [2003] the Employment Appeal Tribunal said that once it is established that you made 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.


Some support organisations

Public Concern at Work – The Whistleblowing Charity

Whistleblowing Helpline – NHS and Social Care


Updated: 01/03/2020

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