Whistleblowing

Whistleblowing

The Public Interest Disclosures Act provide a system to protect employees from the consequences of whistleblowing. The policy is to promote employees in revealing wrongdoing risks and shortcomings in workplaces without fear of reprisal.

Whistleblowing protects workers. They are persons employed under employment contracts, certain contractors, agency workers, some work experience students and some independent contracting professionals as defined.  The courts have held that the protection may also extend to limited liability partnerships.

The core right is that the employer is not to be subjected to any detriment by any act or any deliberate failure to act by his employer done on the ground that the worker has made a protected disclosure. Detriment is broad in meaning. It may include, for example, discipline, failure to promote, receiving negative appraisals, being given unpopular duties, relocation. Omissions may be detrimental in this context, if they are deliberate.

An employee who is dismissed is regarded as unfairly dismissed if the principal reason for dismissal is that he made a protected disclosure. Accordingly it is an automatically unfair grounds of dismissal. No qualification period applies.

Qualifying Disclosure

A protected disclosure must be a qualifying disclosure. It must be made in one of the ways provided for by the legislation.

There are a number of categories of qualifying disclosure;

• that a criminal offence has been committed is being committed or is likely to be committed
• that person has failed is failing or is likely to fail to comply with any legal obligation to which she is subject
• that a miscarriage of justice has occurred is occurring or is likely to occur
• that the health and safety of any individual has been or is likely to be endangered
• that the environment has been is being or is likely to be endangered
• that information tending to show any of the above matters has been or is likely to be deliberately concealed

An accusation of generalised wrongdoing is insufficient. The must be some factual basis. The may be a disclosure notwithstanding that the matter is known to the recipient.

A qualifying disclosure need not necessarily relate to the employer. It can refer to third-party who is responsible for the relevant failure.

The disclosure does not have to be correct. There need not be  an actual failure. The worker must reasonably believe that there has been a relevant failure. The worker must bona fide believe the relevant matter and must have a reasonable basis for so doing.

Some disclosures are not protected including in particular those the subject of official secrets legislation. Certain disclosures which breach legal professional privilege are not protected.

The disclosure usually takes place during employment, but this need not necessarily be the case.

To Whom Made

There are requirements as to whom the disclosure is to be made. Generally, disclosure must be to a specific person rather than generally to the world or to the media.It should be made to the employer in the first instance. If there is an internal complaints / whistleblowing procedure, that should be used.

The relevant workplace policy may provide for disclosure to a third party or independent person in which event, this is generally permissible.

There area separate disclosure requirements where the matter does not relate to the employer. Complaints may be made to persons prescribed by the Secretary of State. They are protected if the worker reasonably believes that the relevant failure is within certain categories of matters in respect of which the person is prescribed and that the information disclosed and allegations are substantially true

These provisions cover disclosures to appropriate bodies such as the Health and Safety Executive, HMRC, the Environment Agency in respect of matters within their responsibilities.

Where disclosure is made to third parties (neither prescribed persons nor employers) additional conditions apply. the worker must reasonably believe the information to be substantially true. It must not be made for personal gain. It must be reasonable that the worker make the disclosure in all the circumstances of the case.

There are further conditions

• that the worker reasonably believes he will be subjected to detriment if he makes the disclosure to his employer or prescribed person,
• that there is no prescribed person and the worker reasonably believes that it is likely that evidence relating to the failure will be concealed and destroyed if he makes the disclosure to the employer or
• he has previously made disclosure of substantially the same information to the employer or prescribed person.

The legislation provides a number of factors in determining what is reasonable in the circumstances. They include the seriousness of the relevant matter and the  person to whom the disclosure is made.

There are further provisions in respect of exceptionally serious failures.

Before reformed legislation taking effect in 2013, the disclosure must be made in good faith. In these circumstances, an ulterior motive could mean that the disclosure was not made in good faith. The legislation was amended to remove the requirement, given the difficulty of disentangling motives et cetera

Causation

The protected disclosure must be the cause of detrimental treatment/dismissal et cetera in the context of a claim. This can be difficult to prove in some cases. It may be  readily inferred in many circumstances. The employer may be in in a position to show other reason for the dismissal/detrimental treatment.

2013 legislation provides that the worker should must not be subjected to detriment by a colleague or agent of the employer because of making the protected disclosure. detrimental treatment may be regarded as done by the employer, even if the employer did not condone and was not aware of it.

In an unfair dismissal case the employee must prove that the he made the protected disclosure and is dismissed. The burden of proof is on the employer to show that the reason was for other good grounds.

The claim must be brought within three months in the usual manner. Time may be extended in accordance with the general ACAS early conciliation provisions, which is mandatory.