First off, what is a whistleblower?
A whistleblower is a term used to describe a person who leaks sensitive information, reports wrongdoings, crimes, or morally questionable practices or events that occur within their own workplace. Usually, the reports are regarding people in high positions such as management or particular duties that the person has been asked to perform. Although, this is not always the case. Certain groups within organisations, such as specific teams or departments can also be reported on by whistleblowers.
For example, the case of Edward Snowden was a highly publicised whistleblowing case. Snowden leaked sensitive information from the National Security Agency in the U.S, after his ethical concerns went unnoticed by his superiors.
What is a protected disclosure?
Protected disclosures are defined under Section 43A and 43B of the Employment Rights Act 1996. To put it simple, a disclosure of information (of or about the employer) will only be qualified as protected disclosure when the disclosing employee has a reasonable belief that the disclosure is made in the public interest, instead of for personal gains and for the following one or more purposes:
- a criminal offence has been committed, is being committed or is likely to be committed,
- a person has failed, is failing or is likely to fail to comply with any legal obligation to which he is subject,
- a miscarriage of justice has occurred, is occurring or is likely to occur,
- the health or safety of any individual has been, is being or is likely to be endangered,
- the environment has been, is being or is likely to be damaged, or
- information tending to show any matter falling within any one of the above has been, is being or is likely to be deliberately concealed.
The wrongdoer of such actions can be the employer, a person for whom the employer is responsible, or any other person, or group of people, within the organisation.
Some factual information must be disclosed in order for it to become a protected disclosure. Simply voicing an opinion or complaining about something is not enough. There must be sufficient factual content to back it up.
To make sure a disclosure qualifies for legal protection, it is very important that the whistleblower person comes forward in an appropriate way and to an appropriate person. If there are procedures laid out by the employer or organisation, it is very important that these procedures be followed. Such steps are sometimes laid out in employment contracts.
Alternatively, if the disclosure relates to a specific area of concern, for example the safety of employees or the general public, then the head of Health and Safety would be a good person to speak to initially.
There are two points which are worth noting:
A disclosure is not a protected disclosure if you have to commit an offence in order to disclose it. In this case, what Edward Snowden did could be protected disclosure, as the US government believes that he breached their laws and has been seeking to prosecute him.
If information is subject to the protection of legal professional privilege, the disclosure of it will not be treated as protected disclosure. For example, you want to come to Lisa’s Law to consult about your employment right. Whatever you are going to disclose to us about your employer will not be treated as protected disclosure, as discussion between you and us will be strictly kept confidential.
It should also be noted that employees’ right of whistleblowing cannot be contracted out. In another word, any contract which purportedly tries to prevent employees from making protected disclosures is void.
Why are the protected disclosures so important?
Protected disclosures are hugely important as they essentially allow the whistleblower to provide information without having to face consequences such as being fired, demoted or treated negatively once they have done so. It is a way to allow people to report any questionable activity that may be going on in their workplace, and feel they can do so without being reprimanded. As its name suggests, it is a guarantee of protection for the worker making the disclosure.
Protected disclosures can be applied to most types of worker, such as:
- Employees
- Former employees
- Freelancers
- Agency workers
- Part-time workers
- People on work experience
So long as the information provided qualifies for such protection, the employee concerned will be protected from any detrimental treatment from the employer.
More than a hunch!
Where the worker believes that something will happen, but it has not necessarily already occurred, the worker must reasonably believe, based on the information they have, that it is more likely than not that the bad consequence will occur. It is not enough to have a hunch or only believe that there is a moderate risk or possibility that it will occur.
The burden of proof lays on the individual coming forward with the information.
An important factor is that the information disclosed is the interest of the public and not only in the interest of the whistleblower themselves. It is unlikely that disclosures which can be assessed as being in hopes of personal gain rather than public interest will be protected.
This issue was considered in the case Chesterton Global Verman v Nurmohamed where the following factors were considered when assessing the gravitas of the information provided:
- The amount of people whose interests the disclosed information served (the higher the number, the more likely the disclosure is to be in the public interest)
- the nature of the interests and areas affected by the disclosure
- the extent to which those areas and interests are affected by the wrongdoing reported
- the nature of the wrongdoing disclosed (deliberate, malicious wrongdoing will likely have more weight than wrongdoing brought about by error)
- the identity and status of the alleged wrongdoer (the larger and more prominent the alleged wrongdoer, the more likely the disclosure is to be in the public interest)
If you have further questions about necessary belief, you can get in contact with us and we will help clarify the situation for you. It is highly recommended that if there are any doubts about making a disclosure, legal advice should be sought.
What happens if a whistleblower is still punished for making a protected disclosure?
Punishment can be by way of dismissal, demotion, or discrimination or other form of detriment to the employee concerned, like pay-cut. Such punishment will be automatically unfair and unlawful. They can be grounds for unfair dismissal.
The employee shall make a claim to an employment tribunal within 3 months of such victimisation. The tribunal will have power to award the successful employee a basic award calculated in light of the employee’s age, salary/wage as in all other unfair dismissal cases and the duration of employment and a compensatory award which is to reflect the employee’s financial losses and/or injuries to their feelings.
There are the following differences between an unfair dismissal based on protected disclosure and other types of unfair dismissal:
The former is not subject to any qualifying period, while the latter requires that a claim can only be made normally after the employee has been working for his/her employer for 2 years; and
There is no cap on the compensatory award in the case of an unfair dismissal based on protected disclosure, while in the latter case, it is capped currently at £88,519.00.
This is the whole purpose of the protected disclosure, it is there to uphold the rights of the worker and allow them to come forward with information without being punished for it, so long as the information they have qualifies for such protection.
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