Whistleblowing and Protected Disclosures

Whistleblowers are protected under the Public Interest Disclosure Act 1998 which is incorporated into the Employment Rights Act 1996. This is a particularly complex area of employment law, and both employers and employees are best advised to seek early legal advice should such issues arise in the workplace. The specialist employment law team at O’Donnell Solicitors has experience of providing advice on whistleblowing and claims about unfair dismissals and detriment following a protected disclosure.

What is whistleblowing?

Whistleblowing refers to the act of an individual disclosing information about wrongdoing or illegal activities within an organisation. In doing so, they are said to have made a protected disclosure but it needs to meet specific legal criteria to qualify for legal protection. These protections are intended to enable individuals to speak up about wrongdoing without fear of retaliation.

What is a qualifying protected disclosure?

To be a qualifying protected disclosure, it must relate to a specific type of wrongdoing, be made in the public interest, and be made to the appropriate person. The whistleblower must also have a reasonable belief that the disclosure is substantially true.

The relevant types of wrongdoing include:

• A criminal offence, such as fraud, theft or bribery.
• A breach of a legal obligation, such as health and safety rules.
• A miscarriage of justice.
• A danger to health and safety.
• Damage to the environment.
• The deliberate concealment of information about any of the above.

The disclosure must be made in the public interest. This means that it should impact others, not just the individual making the disclosure. Personal grievances are not usually considered whistleblowing.

The disclosure must be made to an appropriate person or body. This can include:

• The employer, including a manager of specific department within the business.
• A legal advisor.
• A prescribed regulatory body, such as the Health and Safety Executive, the Financial Conduct Authority, or HM Revenue & Customs.
• The media or external organisations.

Who is protected?

Many people may benefit from legal protection if they have made a qualifying protected disclosure. This includes employees, workers, agency workers, apprentices, trainees/student workers, and office holders. However, the genuinely self-employed, volunteers with no enforceable employment contract, non-executive directors, members of the armed forces and crown employees dealing with national security are not protected.

The protection is immediate from the commencement of the engagement and there is no requirement for a minimum continuous service or engagement period. The protection also continues after the individual leaves the organisation they have make the disclosure about.

What is the legal protection for whistleblowers?

Whistleblowers are protected from detriment and unfair dismissal as a result of making a protected disclosure.

Detriment means unfair treatment and can include bullying, harassment and victimisation, denial of promotions or training opportunities, unfair changes to working conditions, exclusion or isolation. 

If an employee is dismissed for making a protected disclosure, the dismissal is automatically unfair regardless of their length of service. There is no cap on the compensation that an Employment Tribunal may award for unfair dismissal in whistleblowing cases.

What is the time limit for whistleblowing claims?

An employee must file a claim with the employment tribunal within three months less one day of the effective date of termination of their employment or the date of the detrimental act.

Early ACAS conciliation is required before filing a claim with the Employment Tribunal. Commencing early ACAS conciliation before the expiry of the limitation period for bringing the claim will result in an extension of up to six weeks.

Failing to file a claim with the Employment Tribunal, or commencing early ACAS conciliation, within the limitation period will mean that the claim will be statute barred and no further action can be taken in relation to it.

The time limit can be extended by an Employment Tribunal if it decides that it was not reasonably practicable for a claim to have been presented within the limitation period. It can be difficult to persuade an Employment Tribunal to exercise its discretion to extent time for presenting the claim. It is therefore imperative that specialist employment law advice is sought as soon as possible if an employee wants to make a whistleblowing claim.

What are the remedies for whistleblowers?

If an Employment Tribunal finds that a whistleblower was dismissed or suffered a detriment as a result of making a protected disclosure, it can award:

• Reinstatement – the employee gets their job back.
• Re-engagement – the employee is rehired in a similar role.
• Compensation – comprised of a basic award and an uncapped compensatory award for unfair dismissal claims, or compensation for injury to feelings, financial losses and other damages for detriment claims.

Contact our specialist whistleblowing claim solicitors

The Employment Team at O’Donnell Solicitors has specialist knowledge and experience in helping both employers and employees to navigate whistleblowing issues and claims. We offer a personalised approach, tailored to your specific needs and circumstances. In all cases we provide clear explanations of the process, costs and potential outcomes. 

For employees, we will advise you of your rights if you believe that you have been treated unfairly for blowing the whistle. We will guide you through your employer’s internal whistleblowing policy and reporting the matter to the relevant external body, advise you on the strength of a claim, and help you to pursue compensation if you have suffered detrimental treatment or have been dismissed after making a protected disclosure.

For employers, we will develop and review your whistleblowing policy, help you to train managers to understand protected disclosures and respond sensitively and confidentially, and guide you through the process of investigating disclosures and taking steps to protect whistleblowers. If a claim is issued against you, we will analyse the strength of the claim against the relevant statutory requirements and previously decided case law and work with you to ensure a cost and time effective response.

If you would like to speak to one of our specialist solicitors about a whistleblowing issue or claim, please contact the Employment Team at 01457 761 320 or e-mail enquire@odonnellsolicitors.co.uk.