Employment law- Whistleblowing
What is whistleblowing?
Whistleblowing arises where you bring information about a wrongdoing to the attention of your employer or a relevant organisation, such as a professional or regulatory body. This is commonly referred to as ‘blowing the whistle’ and it is more formally known as ‘making a disclosure in the public interest’. The relevant legislation appears in the Public Interest Disclosure Act 1998.
What is a protected disclosure?
To qualify for protection, you must have a “reasonable belief ” that a wrongdoing has occurred, or is likely to occur, and that it is in the public interest. It is not necessary for the wrongdoing to have actually occurred, but that you believe it to be true. To qualify as a protected disclosure, it also needs to relate to statutory category of “failure”, namely;
-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.
What is a “disclosure” in order to gain whistleblowing protection?
The definition of what amounts to a disclosure is essentially “any information which has sufficient factual content and specificity” that is capable of being able to show one of the six relevant failures listed above. This can arise from an amalgamation of several communications (such as emails) , even if one or more would not qualify.
A disclosure of information can also take place where you provide the information to a person who is already aware of that information. In other words, it doesn’t matter if your employer is already aware of the information you are disclosing.
You need to convey facts of events when providing information- allegations and opinions are not the same thing. In practice, information and allegations are often intertwined.
A disclosure which may have fallen short because of being too general in nature can be boosted by context or surrounding communications. For example, the words “you have failed to comply with health and safety requirements” fall short on their own, but may constitute information if accompanied by a gesture of pointing at sharp implements lying on a hospital ward floor.
Personal grievances (for example bullying, harassment, discrimination) are not covered by whistleblowing law, unless your particular case is in the public interest. This should instead be dealt with in the first instance by lodging a formal grievance against your employer.
What does “in the public interest” mean?
Unhelpfully, what amounts to a “public interest” is not defined in the legislation and so it is left to the courts and tribunals to lead the way with their interpretation. This will depend on all the facts of the case, and sheer numbers of workers affected may not always be enough in itself.
The courts have held that there are 4 factors relevant to the public interest test:
–The number of individuals whose interests the disclosure served. There may be some cases where sheer numbers are enough, although in most cases additional factors will be needed.
–The nature of the wrongdoing disclosed. In particular, deliberate wrongdoing is more likely to meet the test than inadvertent behaviour.
-The nature of the interests affected and the extent to which they are affected by the wrongdoing disclosed. Disclosures of serious wrongdoing affecting important interests are more likely to meet the test.
-The alleged identity of the wrongdoer. The larger or more prominent the organisation, the more likely a disclosure about it will be in the public interest.
What is a “reasonable belief”?
The correct test is whether an individual has a “reasonable belief” that the disclosures are in the public interest and “tends to show” one or more of the “relevant failures” set out above. This belief must be genuine, but there can be more than one reasonable views depending on what anyone else might have believed in the same circumstances.
There does, however, need to be some substantiated basis for your belief, and so rumours, unfounded suspicions, and uncorroborated allegations will not be enough. For example, raising a health and safety issue at work which could never lead to disclosure is unlikely to be sufficient.
Who does the law protect?
You are protected as an employee, but also as a worker , which includes freelancers, agency staff, and directors. The categories of workers who are protected is very wide.
How do you make a protected disclosure?
If you need to make a protected disclosure, the following applies:-
- Make the disclosure to your employer, unless there is good reason not to. If you believe your employer will either cover it up, treat you unfairly if you complained, or they have not addressed the issue after your having already notified them, then you can make the disclosure to a “prescribed person” who are independent to your employers.
- Keep a written note at all times as evidence of your disclosure and to whom. This includes where you are making the initial disclosure in writing.
What whistleblowing protection do you have?
If you have made a protected disclosure, you have the right not to be either;
- unfairly dismissed, (which will be automatically unfair if the reason, or principal reason, for the dismissal is that you have made a protected disclosure) and/or;
- subjected to a detriment. A detriment may be by any act, or any deliberate failure to act, because you have made a protected disclosure.
Other detriments you may face are as follows:
- being denied promotion;
- a demotion;
- being set unreasonable targets and/or being required to work longer hours;
- being put on a performance process;
- receiving less salary or other benefits;
- being bullied or harassed;
- where you are ostracised:
- blocking access to resources;
- disciplinary sanction;
- denial of training;
- failure to provide an appropriate reference.
The detriment must be more than “just related” to the disclosure. There must be a causative link between the protected disclosure and the reason for the unfair treatment. Accordingly, the disclosure must be the “real” or “core” reason for the detriment you have suffered. The onus is on your employer to prove that you did not suffer a detriment due to the disclosure, and that it was because of another reason, such as your performance, conduct or redundancy.
In a dismissal claim, the test is whether the making of the protected disclosure was the reason (or principal reason) for dismissal. This is a higher threshold than in a detriment claim, where you have to show that the protected disclosure had more than a trivial influence on the detrimental acts complained of.
What if the “detriment” is actually my dismissal?
If the detriment you receive is a dismissal, your claim will be for automatic unfair dismissal (because as mentioned above “detriment is a different claim). However, you may still have a separate claim against your employer for detriment up to the date of dismissal.
Do I need to have been employed for 2 years in order to bring a claim?
Unlike in unfair dismissal claims, there is no qualifying period of employment required in making a whistleblowing claim, and no maximum cap on a tribunal award if you win your case.
What are the time limits in making a claim?
There are important time limits in making a claim. It is necessary to lodge a claim of detriment due to whistleblowing with ACAS under their early conciliation process within 3 months less one day of the act or failure to act that is the subject of the complaint.
A single act is often obvious, for example, if your employer imposed on you a brand new contract after a protected disclosure was made, then that is the detriment and time starts to run from that date. In this example, although it may be possible to say that the “detriment” of not having the benefit of your previous contract terms is ongoing, the act that caused the detriment (the new contract) is not.
There can, however, be continuing detriments extending over a period of time. This could be a policy or rule where continuing decisions have to be made, in which case time will run from when each decision is made. For example, if your employer operates a detrimental rule or practice, such as a failure to recognise service abroad for the purposes of a pension arrangement, that will constitute an act extending over a period of time.
The lodging of the claim with ACAS is a preliminary step that must be taken before proceedings can actually be issued in the employment tribunal.
What happens if the case goes to a tribunal?
If a case goes to a tribunal and the tribunal thinks the disclosure was made in bad faith (for example, if the disclosure is not made with honest motives and/or where it is made for personal gain), the tribunal will have the power to reduce your compensation by up to 25%.
In summary, you will have to show three things to win at tribunal:
- that you made a qualifying disclosure and had reasonable belief in doing so;
- that you followed the correct disclosure procedure;
- that you were dismissed or suffered a detriment as a result of making the disclosure.
What damages could I recover in the employment tribunal for whistleblowing?
There is no upper limit on the amount of compensation that can be awarded in unfair dismissal or detriment claims. Although compensation for detriment can include financial and non-financial loss (such as injury to feelings), this is different for unfair dismissal damages which can only cover financial loss.
In principle, you can also claim post-termination losses if you can show that the losses are attributable to a pre-termination detriment, potentially therefore increasing awards in detriment cases.
A more detailed explanation on how tribunals assess damages in whistleblowing claims can be found here:
- Loss of earnings and other financial loss – The tribunal can take into account present and future loss of earnings, to include where necessary how the impact of your employer’s actions may mean you would have difficulty securing new employment.
- Personal injury- for detriment cases where your illness has arisen directly as a result of her treatment by your employer.
- Injury to feelings- for detriment cases, and is to compensate you for the upset, frustration, worry, anxiety, mental distress, fear, grief, anguish, humiliation, unhappiness, stress and depression. The tribunals will follow the following “Vento” bands: TOP BAND FOR THE MOST SERIOUS CASES: £29,600- £49,300 (although it can exceed this in exceptional cases);MIDDLE BAND: £9,900 – £29,600; LOWER BAND FOR LESS SERIOUS CASES (e.g. a one-off or isolated incident of discrimination): £990 – £9,900
- Aggravated damages-this can be awarded where it is found that your employer’s actions amounted to conduct that was malicious, high handed and oppressive.
Can I make a claim for interim relief at the tribunal?
Yes, the tribunal can grant you interim relief (with an immediate application) by making an order for the continuation of your employment pending final determination of the case.
Applications for interim relief must be made before the end of the 7th day following the effective date of termination of your employment. If you were dismissed with notice, you can also make an application during the notice period.
Interim relief can only be granted if the tribunal thinks that you are likely to establish at a final hearing that the protected disclosure was the reason (or principal reason) for dismissal. This means that it must be likely that a tribunal will find that:
-you have made a disclosure to his employer
-you believe that the disclosure tended to show one or more of the 6 types of failure
-your belief was reasonable
-you believe the disclosure to be in the public interest
-the disclosure was the principal reason for the dismissal.
If you are successful in your application, the tribunal will ask your employer if it is willing to reinstate you or re-engage you on terms that are no less favourable and are acceptable to you. If so, the tribunal will make an order to this effect.
If your employer refuses to reinstate or re-engage you, an order for continuation of the employment contract will be granted. This will give you the right to continue to receive your salary and benefits, together with continuity of service, pending the final hearing. You do not have to do any work. However, if your employer was to offer you re-engagement on different terms and if you unreasonably refuse the new terms, the tribunal will make no order for continuation of your employment.
It is recommended that you seek early advice if you believe you have a whistleblowing claim.
In 2015, the Financial Conduct Authority (FCA) and the Prudential Regulation Authority (PRA) introduced new rules which were designed to strengthen the protections afforded by the whistleblowing legislation. These sanctions apply to all UK-incorporated banks, building societies, credit unions and investment banks and came into effect on the 7th of September 2016. Click here to access our blog on the new rules.