Who Has Whistleblower Protection?
As a rule of thumb, professionals and employees have the duty to report wrongdoings on the part of their coworkers or superiors, mainly when these wrongdoings concern the public interest. This has been traditionally known as “whistleblowing” (or “blowing the whistle”), although its legal name is “disclosure in the public interest”.
Regulation on the matter is contained primarily in the Public Interest Disclosure Act 1998, which defines what constitutes proper whistleblowing and in which cases you would be protected.
If you are a whistleblower, you enjoy legal protection regardless of your particular employment status, whether you are an employee, an agency worker, or even a freelancer, covering thus a wider array of categories than many other types of employment protection.
If you believe you have a whistleblowing claim and need advice or support, call our employment law team at 03334149244.
- Who Has Whistleblower Protection?
- What Exactly Is a “Protected Disclosure”?
- What is “Public Interest”?
- What is “Reasonable Belief”?
- Types of Whistleblowing
- How Should I Whistleblow?
- If My Employer Punishes Me for Whistleblowing, Could I File an Employment Tribunal Claim?
- Contact Whistleblowing Solicitors
- Frequently Asked Questions
What Exactly Is a “Protected Disclosure”?
A protected disclosure is a report that wrongdoing against the public interest has occurred, is occurring, or is likely to occur based on a “reasonable belief”. In that sense, it is not necessary for the wrongdoing to actually take place in order for the protection to apply.
A protected disclosure should refer to one of the following “failures”:
- A crime – This entails actions ranging from blue-collar crime (e.g., burglary, assault, drug dealing, etc.) to white-collar crime (e.g., tax fraud, money laundering, embezzlement, etc.)
- A breach of a legal obligation – Employers may engage in wrongdoings linked to employment laws on working time regulations, minimum wage, discrimination, etc. Likewise, your employer could also break rules not directly related to employment (such as licencing laws)
- Actions that pose a clear danger to the health or safety of other people – Your employer or colleagues could infringe upon health and safety regulations and pose a severe risk to the rest of the workforce or even the workplace’s surroundings. Your employer has the ultimate responsibility to ensure the welfare, health, and safety of their employees according to the Health and Safety Act 1974
- Actions that harm the environment or that attempt to cover up environmental offences – Organisations could put the environment at risk by how they manage the natural resources they exploit and how they give their account of this to the authorities. Examples of environmental violations include dumping toxic wastes in the ocean or sharing inaccurate data regarding the number of natural resources they extract
- A miscarriage of justice – Your employer or superior could penalise you for actions committed by someone else or victimise you for the acts or omissions of other people, often in a blatantly unjust manner
- Deliberate concealment of information related to any of the above – You could report a person who is supposed to disclose information regarding any of the above failures but deliberately and dishonestly conceals it
In this context, you’d reveal information about any of the “failures” listed above to another person or body who may or may not be already aware of it. The fact that they may know about the occurrence does not void the protection you receive.
It is important to note, when you “blow the whistle”, you share “facts” or “events” and not mere opinions or allegations. The information conveyed should also have a degree of “specificity”. Generic and vague affirmations without any further elaboration would not be enough to grant you whistleblower protection.
For example, saying “A has done a terrible thing” or “B has committed a heinous criminal offence” is of no use to you. You should be able to describe at least what the offence was and how it transpired.
Conversely, statements like “A stole X amount of money from B” or “B started the fire in X place yesterday” could be factual enough. If you make generic statements accompanied by appropriate gestures that give a clearer context, you could likewise make the case for a valid protected disclosure.
You will not be protected for disclosing personal grievances – such as bullying or harassment – unless they are perceptibly in the public interest. Usually, these personal problems should be settled via internal grievance procedures.
What is “Public Interest”?
Something is generally seen as being in the public interest whenever it transcends the sphere of an individual’s rights and raises situations that could have a broader impact on society.
With that said, as of this date, there’s no legal definition of what “public interest” is. However, the courts generally lay out four indicators that could show that your disclosure aims for it:
- The number of people who benefit from the disclosure – The larger the number, the more likely it will serve the public interest
- Whether the fault or wrongdoing was deliberate or unintentional – Calculated transgressions are far more plausible to be against the public interest than involuntary ones
- The very nature of the wrongdoing – Whether the wrongdoing disclosed affects essential rights
- The prominence of the offender – The more important a person or organisation is, the more impactful the disclosure could be for the public good
What is “Reasonable Belief”?
A “reasonable belief” is a genuine and justified conviction that shows or “tends to show” that wrongdoing took place and that its disclosure is for the public good, even if it were confirmed later that it didn’t occur.
There could be legitimate alternative interpretations on whether or not the disclosure is in the public interest, but that won’t affect the “reasonableness” of your personal belief, and you should not be deprived of whistleblower protection on that basis.
Nevertheless, the belief cannot be grounded on wild speculations and outlandish assertions. In addition, unsubstantiated allegations or unfounded suspicions will not suffice to make a belief “reasonable”.
For example, you could not assert that you know A was guilty of starting a fire in the workplace because it was revealed in a dream or someone you spoke with heard it from a presumed witness (hearsay or gossip).
Types of Whistleblowing
Whistleblowing could be done in three main ways:
- Internal whistleblowing: This is the most common type of whistleblowing, wherein you report wrongdoing to another person in the organisation or company. The procedure for “blowing the whistle” should appear in your organisation’s whistleblowing policies
- External whistleblowing: Some wrongdoings could transcend the confines of your organisation and would need the intervention of an outside body or authority (called a “prescribed body”), such as the Health and Safety Executive or even the police
- Cyber whistleblowing: This type of whistleblowing is much more specialised and deals with matters of cyber security and data protection (e.g., hacks, online security breaches, encryption glitches, etc.)
1. Manage your Motivations
Your whistleblowing should not be motivated by revenge or purely personal interests (such as financial gain). You may have your whistleblowing protection relinquished if you were found to have ulterior motives.
There are situations where you’re obliged to report according to your regulatory code of conduct, regardless of whether or not you have other motivations. For example:
- If you’re an accountant, you ought to whistleblow to the ICCA
- If you’re a senior manager under the SM&CR (Senior Managers and Certification Regime), you should report to the FCA or PRA
- Solicitors would have to report any wrongdoings to the SRA
2. Abide by Your Company’s Whistleblowing Policies
Your organisation should have a whistleblowing policy with information on who to speak with and the procedure that the person in charge must follow in their investigation. If you don’t proceed according to the policy, your employer could later allege that they weren’t aware you blew the whistle.
3. Make Your Disclosure in Writing
It’s always better to keep a record of your concerns by raising them in writing, even if the company’s whistleblowing policy encourages verbal disclosure. An email is probably the most convenient medium.
4. Choose Your Words Carefully
The words you use in your disclosure must convey clearly that you are sharing information about facts and not just spreading rumours or making harsh accusatory remarks. Also, strive to be courteous in your assertions to the best of your ability.
5. You Should Not Investigate
Remember that you are not charged with investigating the facts. You only need to disclose what you witnessed and let your superior or prescribed person or body do the proper scrutiny. If you insist on doing the investigation yourself, your motivations could be legitimately questioned, and your employment relationship could suffer as a result.
6. Consider Using a Regulator
If you doubt your employer’s goodwill and suspect that they may not take kindly to your meddling, you should probably consider having public authorities involved. The body responsible for receiving your report should be the one that can enforce penalties in that given field (e.g., if it’s a tax issue, the HMRC).
7. Try Not to Make It Public
You should not make your concerns widespread by going to the press or posting them on social media. If you do, you risk losing your whistleblower protection.
If My Employer Punishes Me for Whistleblowing, Could I File an Employment Tribunal Claim?
Some employers don’t handle whistleblowers very well and could end up turning hostile against you. In many instances, they could take the following actions against you (among others):
- Harass or victimised you
- Put pressure on you to quit your job
- Restrict access to benefits or bonuses
- Dismiss or demote you
Likewise, if you are victimised or receive detrimental treatment because of your whistleblowing, you can resign from your position and file a constructive dismissal claim alleging a breach of mutual trust (which has virtually the same effect as an unfair dismissal claim).
Whistleblowing dismissal claims must be made within three months of the termination date. However, you’d have to notify Acas (the Advisory, Conciliation, and Arbitration Service) first, who will then open an early conciliation process.
In cases of mistreatment, you can always try to sort things out internally by raising a grievance directly to your employer, who should grant you the opportunity to make your case in a hearing.
If you witnessed egregious wrongdoing on the part of coworkers or your superiors and don’t know what to do, you should talk to an employment expert who can guide you. It’s also important to seek help from one of our specialist employment law solicitors when faced with pushback and threats from your employer after you “blew the whistle”.
For expert legal advice on whistleblowing concerns, get in contact with our employment team by calling 03334149244. We would be more than honoured to take your case.
You could make an anonymous disclosure. Nonetheless, some circumstances could prevent the prescribed person from taking further measures unless your identity and other personal details are provided. Moreover, you likely won’t be able to prove that any unfair treatment is a result of your whistleblowing.
You could reveal your personal details and request that they remain confidential if you fear serious reprisals from the perpetrators.
You will not have the chance to intervene in the proceedings, though the body or person responsible can keep you posted about the actions they took.
A settlement agreement should not contain any “gagging clauses” that prevent you from making protected disclosures, considering how, on many occasions, you’re legally obliged to do so.