Whistleblowing in the workplace often leads to disputes and the Employment Rights Act 1996 (ERA) seeks to protect workers that have “blown the whistle.”
A worker only qualifies for this protection if they have made a “protected disclosure,” commonly referred to as whistleblowing.
Whistleblowing In The Workplace – Who Is Protected?
The law seeks to protect people that report certain issues in the workplace, either from dismissal or other detriments. The protection applies to employees, workers, certain job applicants, and those in crown employment.
The key protection under the Employment Rights Act 1996 is:
– Section 103A, it is automatically unfair to dismiss an employee for making a protected disclosure.
– Section 47B, a worker must not be subjected to any “detriment” for making a protected disclosure.
– Section 43J, any clause in a worker’s contract which purports to preclude the making of a protected disclosure will be void. Therefore, the making of a protected disclosure will not be a breach of contract.
Where the above may appear straightforward (this is only a snapshot of the relevant law), whistleblowing claims can be very complicated.
Whistleblowing In The Workplace – An Overview
To be deemed a whistleblower, the first question is whether there has been a “qualifying disclosure.” The steps to establish a qualifying disclosure are:
- There must be a disclosure of information.
- The subject matter of the disclosure must relate to one of the six listed types of failures, wrongdoing or malpractice (see below), which you reasonably believe applies.
- You must have a reasonable belief that the information disclosed was in the public interest.
If there is a qualifying disclosure, there the next question is whether it is now a protected disclosure, which depends on who it was disclosed to.
Qualifying disclosures made to your employer, or within your employer’s organisation will be protected disclosures.
In the Employment Rights Act 1996, the test for a qualifying disclosure, along with the list of relevant subject matters of the disclosure is, “a qualifying disclosure means any disclosure of information which, in the reasonable belief of the working making the disclosure, is made in the public interest and tends to show one or more fo the following:
- a criminal offence
- a breach of a legal obligation
- a miscarriage of justice
- a danger to the 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.
It is unnecessary to show that the wrongdoing occurred, there just needs to be a genuine belief held by the worker.
Reasonable Belief In The Public Interest
For there to be whistleblowing In the workplace you must reasonably believe that the disclosure was made in the public interest.
There is no specific definition of what “the public interest” means, so courts/tribunals must decide using an educated impression. The case law has given guidance on the things to be considered:
- The number of affected people.
- The nature of the interests affected.
- The nature/type of wrongdoing disclosed.
- The identity of the wrongdoer.
Whistleblowing In The Workplace – Tribunal Claims
The key protection for whistleblowers is set out above.
The two main types of claims are automatic unfair dismissal and detriment. There is no qualifying service to make these claims.
If the principal reason for dismissal was because you made a protected disclosure, then you can claim that the dismissal was automatically unfair (you do not need to be employed for at least two years to make this claim).
If you are subjected to a detriment because you made a protected disclosure, then you may also be able to claim compensation. The term “detriment” is not specifically defined, but the case law explains that an unjustified sense of grievance is not enough, a detriment is where a reasonable working would o might take the view that they have been disadvantaged. A detriment can be a specific act or a failure to act.
Detriment claims can be presented against employers and the individual perpetrator.
Automatic unfair dismissal claims can be presented against your employer only.
Time Limits – There are strict time limits in making claims. You must commence Early Acas Conliation within 3 months less one day of the dismissal or detriment. However, if there is a series of detriments, you may be able to calculate the time limit from the last detriment in the series.
Please see our Employment Tribunal Time Limit Calculator for more information on time limits.
In certain unfair dismissal cases, including whistleblowing, you can apply for interim relief.
This means if you were dismissed because of whistleblowing in the workplace, the Tribunal can grant “interim relief” which is an order for continuation of employment pending the final hearing determining the case.
Only employees can apply for interim relief.
The application for interim relief must be made before the end of the 7th day following the effective date of termination (the date the employment was ended). You do not need to complete Early Acas Conciliation before making an application for interim relief, although if you wish to present other claims, such as detriments because of whistleblowing in the workplace, you will need to complete Early Acas Conciliation for these claims.
Obtaining an order for interim relief is notoriously difficult and will only be made if the Tribunal concludes that you are likely to establish (at final hearing) that the whistleblowing in the workplace was the principal reason for your dismissal.
If you are successful in your application for interim relief, 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 acceptable to you. If yes, the tribunal order this.
If refused, an order for continuation of the employment contract will be granted. You will have 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 offers re-engagement on different terms that you unreasonably refuse, then this is grounds for a continuation of employment order not to be made.
Whistleblowing In The Workplace – Compensation
There is no upper limit on compensation for unfair dismissal and detriment claims.
The Compensation You Can Claim:
- Loss of earnings/other financial loss. The tribunal will take into account future or present loss of earnings and the impact the actions taken by any employer had on finding new employment.
- Personal injury – only where illness has arisen because of the treatment of the employer.
- Injury to feelings for detriment cases only to compensate upset and worry. We have more information on Remedies in discrimination cases and average awards.
- Aggravated damages – this can be awarded if it is found that the determinant was particularly serious or oppressive.
Whistleblowing Claims – Tips
If you think you have claims related to whistleblowing in the workplace, here are some initial pointers:
- Make sure you are actually protected and can clearly identify each protected disclosure.
- If the protected disclosures were in writing, collate them in date order.
- If the protected disclosures were said orally, write down exactly what was said, to whom and how (in-person, on the phone etc) and on what date.
- The main battleground is often connecting the protected disclosure(s) to the dismissal or the detriments, consider how you can establish this (collate any evidence you have of this connection).
- Take advice. Whistleblowing is a complicated area and many areas are often misunderstood. Taking professional advice at an early stage is a good idea.
- Act quickly. Time limits in employment law claims are very short.