Whistleblowing

The Public Interest Disclosure Act 1998 (PIDA) creates two levels of protection:

• It protects workers from being subjected to any detriment on the ground that they have made a "protected disclosure"
• employees also have the right not to be dismissed if the reason, or principal reason, for their dismissal is that they have made a "protected disclosure".

To be a "protected disclosure" under ERA 1996, a claimant must show that their disclosure is:

• A disclosure of information;
• A "qualifying" disclosure; that is, it was their reasonable belief that their disclosure tended to show that one or more of six "relevant failures" had occurred or was likely to occur
• "Protected" by being made in accordance with one of six specified methods of disclosure

What is a protected disclosure?

A disclosure of information will amount to a "disclosure" whether it is made in writing or verbally. A disclosure made by video has also been held to suffice.
A disclosure may concern new information, in the sense that it can involve telling a person something of which they were previously unaware. However, PIDA provides that a disclosure can also relate to existing information, so it can involve drawing a person's attention to a matter of which they are already aware.
The key date for the purposes of protection under PIDA is not the date the relevant information was disclosed (which may have been before PIDA came into force), but the date of the employer's action against the employee.

Qualifying disclosure

A qualifying disclosure is a disclosure of information which, in the reasonable belief of the worker making it, tends to show that one or more of the six specified types of malpractice has taken place, is taking place or is likely to take.
The categories of malpractice are wide. There are six types of wrongdoing set out in the Public Interest Disclosure Act that a whistleblower can report:

• A criminal offence
• Failure to comply with any legal obligation
• A miscarriage of justice
• Endangering the health and safety of any individual
• Causing environmental damage
• The deliberate concealment of information which would constitute evidence of any of the above

As long as it is the worker reasonably believes that the malpractice has occurred, it does not matter that the belief subsequently turns out to be wrong.
There is no specific requirement that qualifying disclosures must be in the public interest. A "failure to comply with any legal obligation” has been held to cover a breach of the whistleblower's own contract of employment.

Protected disclosure

A qualifying disclosure needs to be made in a prescribed manner in order to be protected. This involves the qualifying disclosure being made to one of the specified categories of person, subject to certain conditions. Unless the disclosure is made to a legal adviser, it must also be made in good faith.

Who disclosures can be made to

Disclosures can be made to:-

• Employers and third parties authorised under workplace procedures
• The persons responsible for the wrongdoing if not their employer
• Legal advisers
• Government Ministers
• Prescribed persons, such as the Financial Services Authority, HM Revenue and Customs, the Audit Commission and the Health and Safety Executive, but not the police.
• Disclosure can be made to wider bodies, however, there are rigorous conditions for such wider qualifying disclosures to be protected.

Disclosure to the media will only be protected in limited circumstances.

Right not to be subjected to a detriment

Workers have the right not to be subjected to a detriment. There must be a link between the protected disclosure having been made and the employee being subjected to a detriment.
Employees have the right not to be dismissed if the reason, or principal reason, for the dismissal is that they have made a protected disclosure. The following also applies:

• The qualifying period (of one year) usually required for an unfair dismissal claim will not apply.
• Their dismissal will be automatically unfair.
• There is no limit on the amount of compensation that can be awarded
• If an employee makes an application for interim relief within seven days of the dismissal the tribunal may grant a continuation of employment order.

Remedies

An employee might have a claim for unfair dismissal, unfair selection for redundancy, dismissal for participating in unofficial industrial action (an exception to the normal rules in this regard) or victimisation or detriment where these are alleged to be the consequence of having made a protected disclosure.

Time limits

A claim must be made within three months (less one day) of the date of the act or failure to act to which the complaint relates or, where that act or failure is part of a series of similar acts or failures, the last of them.

The time limits may be extended by a further three months in certain circumstances where the claimant is an employee and a statutory grievance procedure or disciplinary and dismissal procedure applies.

Compensation

The usual remedies for unfair dismissal apply (re-instatement, re-engagement and compensation). However, there is no limit on the compensation that may be awarded in a claim of unfair dismissal which is related to whistleblowing.

In detriment cases the tribunal must make a declaration to this effect and may award compensation. This may include compensation for injury to feelings, as well as specific financial losses that the employee may have suffered. Aggravated and exemplary damages may also be awarded.

What Employers should do

An employer should minimise the risks by implementing a policy and a procedure for workers to follow if they consider that there are matters that should be reported. If the worker or employee does not follow the procedure, the disclosure may fail to satisfy the necessary requirements for a protected disclosure. Please contact us on 01928 736672 or complete our questionnaire for advice in relation to this.