What is Whistleblowing?
It is unlawful to dismiss an employee, or to subject them to any detriment, because they have made a “protected disclosure”. This is popularly known as “blowing the whistle”. The legislation is technical and requires consideration of a number of issues. The Claimant must be able to show that:
They made a disclosure of information rather than a bare allegation:
in the case of Cavendish Munro Professional Risk Management Limited v Geduld, the Employment Appeal Tribunal explained that a vague statement such as “you are not complying with Health and Safety requirements” would not be protected, whereas the statement “The wards have not been cleaned for the past two weeks” may be.
They reasonably believed the information tended to show one or more of the six categories of statutory failure:
(b)that a person has failed, is failing or is likely to fail to comply with any legal obligation to which he is subject,
(c)that a miscarriage of justice has occurred, is occurring or is likely to occur,
(d)that the health or safety of any individual has been, is being or is likely to be endangered,
(e)that the environment has been, is being or is likely to be damaged, or
(f)that information tending to show any matter falling within any one of the preceding paragraphs has been, is being or is likely to be deliberately concealed.
They reasonably believed that disclosure was in the public interest:
this test was introduced to prevent workers from alleging a breach of their own contract of employment and then asserting that they had made a protected disclosure. An employee cannot now rely upon a breach of her own contract of employment without any wider public interest implications.
It is important to note that the information disclosed does not have to be true, provided that the employee reasonably believed it was.
If the above criteria are satisfied, the employee has made a “qualifying disclosure”. In order to be a “protected disclosure”, the disclosure must be:
- made to the appropriate person and
- in the appropriate manner.
The legislation creates a hierarchy of disclosure: a qualifying disclosure made to the employer is automatically protected, whereas the employee must satisfy additional conditions if the disclosure is made to a regulator or “prescribed person”, and still further conditions if the disclosure is made to another person.
How does a whistleblowing claim work?
If the employee is treated unfavourably at work, they may claim compensation in the employment tribunal. The main award is usually for “injury to feelings”, which is a sum of money intended to compensate the employee for the distress caused by the employer’s treatment. If the employee is dismissed because they made the protected disclosure, they are entitled to bring a claim for unfair dismissal.