Whistleblowing is when a worker discloses confidential information about an organisation they work for in the public interest. This will normally be about wrongdoing or law breaking in an organisation that is not known. Section 43 of the Employment Rights Act 1996 protects whistleblowing employees if this is done in good faith and if the disclosure is carried out in a reasonable way. In such cases, ‘worker’ means employees, agency workers, trainees not employed by an employer, and some self-employed people if they are supervised or on work off-sites.
Employment law regards a public interest disclosure as a ‘protected disclosure’. To qualify, the employee needs to have a ‘reasonable belief’ that wrongdoing that is against the public interest has or is likely to occur. Also, the disclosure needs to meet the statutory definition of ‘failure’ by an organisation. This is:
– a criminal offence;
– a breach of legal obligation;
– a miscarriage of justice;
– a danger to health and safety of an individual;
– damage to the environment or related to a deliberate attempt to conceal any of these matters;
– that information relating to any of the above has been, or is likely to be deliberately concealed.
Employment solicitors advise that a disclosure is ‘any information individually or ’ based on several communications. Facts about events need to be conveyed rather than just amount to allegations. A personal grievance, such as bullying or discrimination, are not covered by whistleblowing law unless it can be argued that the disclosure is in the public interest.
Employment tribunals determine what public interest means in regard to public interest disclosures. Employment tribunals will make a judgement about a case based on facts presented to them by employment solicitors. The courts have shown interest in four factors relevant to the public interest test. These are the:
– number of people who will benefit from disclosure
– nature of the wrongdoing
– nature of the interests affected and the extent to which they are affected, and
– importance of the wrongdoer or the organisation in society.
As stated, there should be a ‘reasonable belief’ that the disclosure is in the public interest and this is not invalidated because there may be different views of whether it is in the public interest.
Employment solicitors advise employees to follow a number of steps in order to make a protected disclosure. These are:
– following the employer’s whistleblowing policy if there is one
– making the disclosure to the employer first unless the employer will cover it up, or treat the employee unfairly
– making the disclosure to a prescribed person or body if it cannot be done to the employer
– making a record of the disclosure so that this becomes evidence that can be presented to an employment tribunal.
The prescribed persons or bodies are set out by the government.
It is illegal to treat unfairly or in some way punish a whistleblower who has made a protected disclosure. Unfair treatment includes:
– dismissal disguised as a redundancy or gross misconduct
– denial of promotion
– having unreasonable targets
– being put on a performance assessment process
– receiving less salary than a comparable other
– receiving less benefits
– bullying, harassment or victimisation
– denial of resources
– denial of training
– failure to provide an appropriate reference.
It is up to the employer to justify any unfavourable treatment. The employment tribunal will look for a link between the protected disclosure and the unfair treatment.