Whistleblowing and protected disclosures

Whistleblowers are in the headlines following the Dyson report into the Panorama interview in 1995 with the Diana, Princess of Wales. Lord Dyson found that Martin Bashir had acted deceitfully in the way he obtained the interview with the Princess of Wales.

Since the publication of the report, press attention has also turned to how the BBC may have treated insiders who tried to expose Bashir’s methods. Today people who blow the whistle at work are protected from being dismissed or from suffering some other detriment.

In its response to the Dyson report the BBC said that since the Panorama interview it had introduced a whistleblowing policy in the late 1990s taking into account the Public Interest Disclosure Act 1998. The policy was re-launched in 2016 as part of its internal communications programme on ‘speaking up’

Today every employer, whatever their size, should have a whistleblowing policy and a named whistleblowing officer for workers to report to. Whilst few situations will reach the high drama of the Panorama interview virtually all employers will have to deal with whistleblowing issues at some point.

Whistleblowers who are dismissed do not need to have the usual two year’s length of service before they can bring an unfair dismissal claim and there is no cap compensation that can be claimed for loss of earnings. As a result, whistleblowing claims of doubtful merit can sometimes be brought by employees trying to circumvent their lack of statutory rights or to increase their levels of compensation.

The legislation on whistleblowing is quite technical. The place to start for employers looking to defend a whistleblowing detriment or dismissal claim is to first establish if a qualifying disclosure has been made. Then assess if that qualifying disclosure has been made to the right person which turns it into a ‘protected disclosure’.

Qualifying disclosure

To qualify for whistleblowing protection the worker needs to pass all of the following tests:

• Disclose information to their employer that one of 6 types of failures or wrong doing has happened or is likely to happen.
• The six categories of failure or wrongdoing overlap to some extent are taken as a whole are very broad. The categories are:
  • Criminal offences;
  • Breach of any legal obligation;
  • Miscarriage of justice;
  • Danger to the health and safety of any individual;
  • Damage to the environment; and
  • Deliberate concealing of information of any of the above
• The information disclosed must contain facts rather than be a vague allegation. For example, saying ‘you are breaching health & safety legislation’ is unlikely to be enough. Whereas stating that the wards have not been cleaned for two weeks and sharps have been left lying around is ‘disclosing information’.
• The worker must have a reasonable belief that the information they are giving to their employer tends to show that one or more of the relevant failures has happened or is likely to happen. It doesn’t matter if the worker’s belief later turns out to be wrong as long it was reasonable to believe it at the time. That means there must be more than unsubstantiated rumours. The?whistleblower?must exercise some judgment that is consistent with the evidence available to them.
• The worker making the disclosure must also believe they are doing so in the public interest. There are no ‘absolute rules’ about what it is reasonable to view as being in the public interest but a tribunal is unlikely to afford protection to an individual who is solely concerned with their own personal interest or liability.

When is a qualifying disclosure protected?

Finally the worker must make the disclosure to one of the categories of people listed in the Employment Rights Act. In most cases this will be a person in some senior position to the workers or the person named in the employer’s whistleblowing policy. In some cases the disclosure may be made to organisations on the ‘prescribed person lists rather than the employer. This includes HMRC, the Health and Safety Executive and the Financial Conduct Authority. The Government has published the list of prescribed persons on-line.

In the next part of this whistleblowing series we will be covering an overview of causation and the burden of proof in whistleblowing and detriment claims, and was the protected disclosure the reason for the worker’s treatment or can the employer demonstrate a legitimate reason unconnected with the disclosure?

For further legal advice on whistleblowing contact our whistleblowing lawyers.