Whistleblowing in the workplace

Have you disclosed wrongdoings at work and faced detriment or dismissal as a consequence?

The law is protective and remedies such as damages, reinstatement and re-engagement are available to you if the following conditions are met.

Whistleblowing protection arises from the Public Interest Disclosure Act 1999 inserting three new sections in the Employment Rights Act 1996 (ERA) (sections 43A to 43L and 103A). It consists in protecting workers reporting wrongdoings at work against victimisation or dismissal. There is no duty to blow the whistle, however when a worker does so, he or she must not face consequences.

Conditions for protection

  • Being a worker, the definition is extensive. Noting that tribunals should adopt a purposive construction when construing the extended definition, in order to provide protection, rather than deny it.
  • Conditions related to the timing of the disclosure- Former or actual employment.
  • Conditions related to the qualifying disclosure-
  • There must be a disclosure of information.

Definition– A disclosure is more than merely a communication, and “information” is more than merely an allegation or a statement of position. The worker making the disclosure must actually convey facts, even if those facts are already known to the recipient.

Form– A disclosure of information will amount to a “disclosure” whether it is made in writing or verbally. Any form of recorded information would be likely to be accepted as a form of disclosure.

Qualification– The own misconduct of the worker whilst attempting to disclose information may remove his or her protection.

  • The disclosure must show that one or more of the six specified types of wrongdoings occurred or is likely to occur.

Categories of wrongdoings- 1-Criminal offences, 2-breach of any legal obligation, 3-miscarriages of justice, 4-danger to the health and safety of any individual, 5-damage to the environment and 6- the deliberate concealing of information about any of the above.

Breach of any legal obligation Broad understanding of this category. Includes obligations present in the employment contract.

Timing and place of the wrongdoing- The wrongdoing can be past, present, prospective or merely alleged. It does not matter whether it occurs inside or outside the UK, and may consist of breach of any applicable foreign law.

Person allegedly thought as wrongdoer- It may concern the conduct of the employer, an employee, or some third party.

  • The disclosure must be in the public interest.

Applicability of this requirement- disclosure made on or after 25 June 2013, date of the entry into force of the 2013 amendment to the Employment Rights Act.

Test- the worker subjectively and genuinely believed at the time that the disclosure was in the public interest and that belief was objectively reasonable.  A wrongdoing affecting large interests and a large number of persons is more likely to be of public interest as opposed to trivial wrongdoings.

  • Conditions related to the mind-set of the worker- The worker must reasonably believe that a wrongdoing occurred. Hence, a worker does not have to prove that the facts or allegations disclosed are true, that they are capable in law of amounting to one of the categories of wrongdoing listed in the legislation or that they reflect public interest. However, an unsubstantiated expression of opinion cannot amount to a qualifying disclosure.
  • Can whistleblowing amount to a breach of confidence? No, confidentiality duties, even though valid, do not have the effect of preventing a protected disclosure.

Should those conditions be fulfilled, the disclosure is qualified hence protected and the worker benefits from two types of protections described below.

Effects of the protection

Detriment

Workers have the right not to be subjected to any detriment provided that they have made a protected disclosure.

Meaning of detriment– The term “detriment” is not defined and tribunals have therefore looked to the meaning of detriment established by discrimination case law. Example of disadvantages amounting to detriment (not exhaustive)- Failure to promote, denial of training, closer monitoring. ostracism, blocking access to resources, unrequested reassignment or relocation, demotion, suspension, disciplinary sanction, bullying or harassment, victimisation, dismissal, failure to provide an appropriate reference and failure to investigate a subsequent concern. For former workers, the detriment can occur after termination of the employment contract, for example a bad reference.

Defence of the employer– The employer has a defence if it took all reasonable steps to prevent the detrimental treatment.

Personal liability on workers who victimise whistle-blower colleagues- Colleagues can be respondents in such cases and held liable.

Causation and burden of proof– The worker needs to prove that the detriment occurred as a consequence of the protected disclosure, noting that the disclosure must be a significant influence, in the sense of “an influence which is more than trivial”. The employer then has the burden of proving the reason for the detrimental treatment. If the employer does not prove an admissible reason for the treatment, the tribunal is entitled (but not obliged) to infer that the detriment was on the ground that the worker made a protected disclosure.

Dismissal

Employees and employee shareholders shall be regarded as automatically unfairly dismissed if the reason, or principal reason, for the dismissal is that they have made a protected disclosure.

Causation- Test- Was the making of a disclosure the reason (or principal reason) for the dismissal? This questions leads to an enquiry into the facts and beliefs which lead to the dismissal. The threshold is higher than in detriment cases because the worker has to show that the disclosure was the main reason, not just a reason, of the dismissal. The dismissal must also be attributed to the employer who knew about the disclosure.

Burden of proof- It is for the workers to show that they have made a protected disclosure, that they have been dismissed and that they are entitled to bring an unfair dismissal claim. Where the employee does not have the qualifying service necessary to bring a claim for ordinary unfair dismissal, the burden is on the employee to show the reason for dismissal; where the employee does have the requisite qualifying service, the burden remains on the employer.

Please contact us on 020 8579 1345 if you fall within these requirements so that we can help you to be fully protected.

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