Whistleblowers
Employees are protected from detriment if the reason for the employee’s action arises from certain cases of whistle blowing - informing on improper practices of employers - where this amounts to a protected disclosure. The whistle blowing legislation is complex. We have set out below the main principles, but if you are considering blowing the whistle you should obtain legal advice before taking any further steps. A dismissal is automatically unfair if the reason for it is that the employee made a protected disclosure. The Employment Rights Act 1996 sets the parameters of what constitutes a protected disclosure, as well as the manner of the permissible disclosure by the worker. Different degrees of protection apply depending upon whether the disclosure was made internally within the employer’s organisation, or externally to a third party.
A protected disclosure includes the disclosure of any information by a worker that in their reasonable belief tends to show that:
It is not necessary for the worker to show that the act concerned has or will occur. A reasonable belief is sufficient. It is immaterial that the act has taken place in the United Kingdom or elsewhere. The Court determines the state of the employee’s disclosure by reference to the date of his or her dismissal or detriment, not the date on which the disclosure was made. A disclosure of information is not a ‘qualifying disclosure’ if the person making the disclosure commits an offence by so making it - e.g. the Official Secrets Act 1989 - and action taken against an individual who makes such a disclosure might not breach Article 10 of the European Convention on Human Rights (the Convention).
Internal Disclosures
The legislation favours internal disclosures because it gives employers the opportunity to address the situation. Workers are protected from detriment where, acting in good faith, they make a disclosure internally to their employer, or where they consider that another person is responsible to that person. A worker who deliberately sets out to embarrass or humiliate the employer may be denied protection on the ground that they were not acting in good faith. As already mentioned, a disclosure is not protected if the worker commits a criminal offence in making it, such as a breach of the Official Secrets Act.
Disclosure to other Persons
If the employer has a procedure whereby the worker may make a disclosure to another person, that disclosure is protected. Disclosure to a legal adviser is also protected. Workers who are engaged by government bodies may make a disclosure to a Minister of the Crown. A worker may also make a disclosure in good faith to a person prescribed by the Public Interest Disclosure (Prescribed Persons) Order 1999/1549. For example, if an employee complains about the proper administration of a charity the Charity Commissioners are prescribed for this purpose.
Different protections apply to cases where disclosures are made to other persons. Aside from the requirements as to reasonable belief and good faith, in order to be protected, the worker must not act for personal gain. The worker also has to show that they reasonably believed that their employer would have subjected them to detriment if a disclosure was made internally, or that the evidence relating to the alleged failure would either be concealed or destroyed, or that an internal disclosure has already been made. Additionally, the worker has to show that the external disclosure was reasonable in all of the circumstances. This depends upon a number of factors, including to whom the disclosure was made, the seriousness of the failure, whether it is continuing or likely to arise in the future and other similar factors. Where the disclosure concerns an exceptionally serious matter, the worker need not make an internal disclosure or show that they anticipated employer retaliation, or that the evidence would be concealed, provided that in all of the circumstances it is reasonable for the worker to make the disclosure. The protection afforded in these circumstances will depend upon the nature of the alleged failure and its likely consequences.
Where a worker is victimised by the employer as a result of making a protected disclosure, a claim can be brought to an Employment Tribunal. Dismissals or selection for redundancy for making a protected disclosure are automatically unfair. The worker does not have to have been employed for a minimum period of time to make a claim. There is no limit on the compensation that can be awarded. Employment Tribunals can award interim relief in unfair dismissal claims.
Where a whistleblower makes a disclosure that is not protected, they are at the mercy of their employer. It is likely that the disclosure will amount to a breach of the duty of confidentiality or fidelity, and the employer can institute disciplinary procedures against the worker. In such cases however, a worker may be able to pursue a general claim for unfair dismissal against their employer.
An employer may sue workers who have disclosed confidential information. In no circumstances can a worker reveal the trade secrets of the employer, which may be widely defined to include simple processes. Ex-employees may also be prevented by their contract of employment from revealing other information confidential to the employer, however, the clause must not prevent the worker from being able to work in the future and the information must be defined. Injunctions may be obtained where such contracts are broken leading to lengthy ‘gagging’ of ex-employees in some cases.
There is a right not to be unfairly dismissed or victimised if a worker who is a health and safety representative takes action when he or she believes workers to be in serious and imminent danger.
See also THE RIGHT TO FREE EXPRESSION
A protected disclosure includes the disclosure of any information by a worker that in their reasonable belief tends to show that:
- A criminal offence has been, is about to be, or is likely to be committed.
- A person has failed, or is about to fail to comply with a legal obligation imposed upon them. This includes an obligation imposed upon them by a contract of employment.
- The health and safety of any person has been, or is being or is likely to be endangered.
- A miscarriage of justice has occurred, is occurring, or is likely to occur.
- The environment has been, or is being, or is likely to be damaged.
- Information tending to show that one of the above matters has been, or is likely to be deliberately concealed.
It is not necessary for the worker to show that the act concerned has or will occur. A reasonable belief is sufficient. It is immaterial that the act has taken place in the United Kingdom or elsewhere. The Court determines the state of the employee’s disclosure by reference to the date of his or her dismissal or detriment, not the date on which the disclosure was made. A disclosure of information is not a ‘qualifying disclosure’ if the person making the disclosure commits an offence by so making it - e.g. the Official Secrets Act 1989 - and action taken against an individual who makes such a disclosure might not breach Article 10 of the European Convention on Human Rights (the Convention).
Internal Disclosures
The legislation favours internal disclosures because it gives employers the opportunity to address the situation. Workers are protected from detriment where, acting in good faith, they make a disclosure internally to their employer, or where they consider that another person is responsible to that person. A worker who deliberately sets out to embarrass or humiliate the employer may be denied protection on the ground that they were not acting in good faith. As already mentioned, a disclosure is not protected if the worker commits a criminal offence in making it, such as a breach of the Official Secrets Act.
Disclosure to other Persons
If the employer has a procedure whereby the worker may make a disclosure to another person, that disclosure is protected. Disclosure to a legal adviser is also protected. Workers who are engaged by government bodies may make a disclosure to a Minister of the Crown. A worker may also make a disclosure in good faith to a person prescribed by the Public Interest Disclosure (Prescribed Persons) Order 1999/1549. For example, if an employee complains about the proper administration of a charity the Charity Commissioners are prescribed for this purpose.
Different protections apply to cases where disclosures are made to other persons. Aside from the requirements as to reasonable belief and good faith, in order to be protected, the worker must not act for personal gain. The worker also has to show that they reasonably believed that their employer would have subjected them to detriment if a disclosure was made internally, or that the evidence relating to the alleged failure would either be concealed or destroyed, or that an internal disclosure has already been made. Additionally, the worker has to show that the external disclosure was reasonable in all of the circumstances. This depends upon a number of factors, including to whom the disclosure was made, the seriousness of the failure, whether it is continuing or likely to arise in the future and other similar factors. Where the disclosure concerns an exceptionally serious matter, the worker need not make an internal disclosure or show that they anticipated employer retaliation, or that the evidence would be concealed, provided that in all of the circumstances it is reasonable for the worker to make the disclosure. The protection afforded in these circumstances will depend upon the nature of the alleged failure and its likely consequences.
Where a worker is victimised by the employer as a result of making a protected disclosure, a claim can be brought to an Employment Tribunal. Dismissals or selection for redundancy for making a protected disclosure are automatically unfair. The worker does not have to have been employed for a minimum period of time to make a claim. There is no limit on the compensation that can be awarded. Employment Tribunals can award interim relief in unfair dismissal claims.
Where a whistleblower makes a disclosure that is not protected, they are at the mercy of their employer. It is likely that the disclosure will amount to a breach of the duty of confidentiality or fidelity, and the employer can institute disciplinary procedures against the worker. In such cases however, a worker may be able to pursue a general claim for unfair dismissal against their employer.
An employer may sue workers who have disclosed confidential information. In no circumstances can a worker reveal the trade secrets of the employer, which may be widely defined to include simple processes. Ex-employees may also be prevented by their contract of employment from revealing other information confidential to the employer, however, the clause must not prevent the worker from being able to work in the future and the information must be defined. Injunctions may be obtained where such contracts are broken leading to lengthy ‘gagging’ of ex-employees in some cases.
There is a right not to be unfairly dismissed or victimised if a worker who is a health and safety representative takes action when he or she believes workers to be in serious and imminent danger.
See also THE RIGHT TO FREE EXPRESSION
