Whistleblowers – common questions
What is meant by the term whistleblowing?
Whistleblowing occurs when an employee or worker raises a concern about malpractice or wrongdoing which has come to their attention through work. Disclosures may be about the conduct of a colleague, the employer, a client or any third party and may affect others, such as member of the public. There are six specified types of malpractice or wrongdoing which an employee or worker can raise concerns about in order to be protected by whistleblower legislation and they are; criminal offences, breach of a legal obligation, miscarriages of justice, danger to the health and safety of any individual, damage to the environment or the deliberate concealing of information regarding any of the above. The person making the disclosure does not have to be directly, personally affected by the malpractice or wrongdoing, but they can be. Certain types of information can be provided, usually to the employer or a regulator, and must be made “in the public interest” and not for personal gain. The concern raised must be a “protected disclosure” in order for the person raising it to be protected by the relevant legislation.
What is the Public Interest disclosure Act 1998 (PIDA)?
The current law regarding whistleblowing was introduced by the Public Interest disclosure Act 1998 (PIDA), which came into force on the 2nd July 1999. However, it is a slight misconception from a legal point of view, that this is the piece of legislation that gives whistleblowers protection. PIDA actually amended the Employment Rights Act 1996 (ERA), and added sections into this to give the current protection to whistleblowers, and it is this piece of legislation we look to for the rights relative to whistleblowers.
What constitutes a protected disclosure?
In order for the person making the disclosure to be afforded protection by the ERA, they must make a protected disclosure, which is defined as a “qualifying disclosure”. There is much case law that surrounds what constitutes a “qualifying disclosure” as mentioned in the ERA, and this is defined in s.43B ERA. Ultimately the person must have a reasonable belief that one of the 6 types of malpractice or wrongdoing (as detailed above) is happening or going to happen and must disclose this to one of the people/organisations detailed in the ERA, and they must also believe the disclosure is in the public interest and have a reasonable belief that the allegation is true..
Who can be a Whistleblower?
An employee or a worker can be a whistleblower. If the disclosure qualifies as protected then you will be afforded protection if you suffer a detriment, or if you are dismissed, because you raised it.
Whistleblowing legislation does not provide any protection for anyone falling outside the definition of “worker” or “employee” such as the genuinely self-employed or members of the public.
Am I protected by whistleblowing legislation?
Yes. As long as you have made a protected disclosure (as detailed above) you are protected from either dismissal from your employer (if the reason, or if more than one reason, the main reason was the disclosure itself) or from suffering a detriment because of your disclosure. The definition of detriment is very wide, but specifically excludes dismissal. It can often therefore be the case that an employee or worker has two claims against their employer – one for dismissal and one for detriments suffered in addition to the dismissal. Common examples of detriment suffered after making a disclosure are ostracism from management and/or colleagues, failure to secure promotion and not being offered overtime, when you previously were. Whistleblowing is one of the few exceptions to the general rule that an employee requires two years continuous service to be afforded protection from unfair dismissal. They are protected from the first day they are employed.
Whistleblowers are also not subject to the normal statutory cap of one year’s gross salary or £78,335 (currently but this figure does change each year), whichever is the lower. Their damages in terms of unfair dismissal are still based on the person’s direct loss, but obviously they are attractive claims as, if someone is out of work, for instance for 3 years, due to being dismissed for whistleblowing, then they can claim the full 3 years loss as opposed to being capped at one year’s salary.
How do I ‘blow the whistle’?
Most qualifying disclosures are made to the employer, and it would always be our initial advice to provide information to the employer directly. If there is a whistleblowing policy in force then it should provide details of the designated person at the company that any disclosure should be made to, and you should disclosure any information regarding your concern in line with the policy. If the employer has a whistleblowing policy in force which allows disclosure to a third party (for example a regulator or external helpline) then disclosure under their policy to such third party will be treated the same as a disclosure to your employer. If the employer does not have a whistleblowing policy then it is advisable to make the disclosure to someone who is senior and has authority over you, as opposed to a junior staff member (although “employer” may be widely interpreted and a disclosure could potentially still qualify if it was made to a junior member of staff who, for example, held a position in HR).
If you believe malpractice or wrongdoing relates solely to the conduct of a specific person, or a matter for which that person is legally responsible, then a disclosure can be made to that responsible person. For example, if you believe that a client is guilty of malpractice or wrongdoing, you could raise this matter with the client as opposed to your employer. If the client asked for you to be removed from their matter and the employer removed you then you would potentially have a claim for whistleblowing against the employer.
In the course of obtaining legal advice you can provide information to a legal adviser and this will be a protected disclosure.
If you are employed by an individual or body appointed under any enactment (for example a statutory tribunal or the NHS) then providing information (regarding your concern) to a Minister of the Crown or your local MP will be a protected disclosure and prior disclosure to your employer is not required.
A qualifying disclosure can also be made to any “prescribed persons”. Prescribed persons include HM Revenue and Customs, the Health and Safety Executive, NHS England, Ofcom, the Charity Commission and the Financial Conduct Authority. A full list of prescribed persons in England, Scotland and Wales, and the “relevant matters” for which each is prescribed can be found at http://www.legislation.gov.uk/uksi/2014/2418/schedule/made. A disclosure made to a prescribed person will only qualify as protected if you reasonably believe that the malpractice or wrongdoing falls within the remit of that prescribed person and that the information disclosed regarding any concern is substantially true.
There are stricter conditions for wider disclosures to be protected, such as concerns raised to the police or the media. In order for such a disclosure to be protected you must believe that the concern and any information disclosed regarding that concern are substantially true. You also must have previously disclosed substantially the same information to either your employer or a prescribed person, or reasonably believe that if you did so you would suffer a detriment, or, where there is no prescribed person, that material evidence would be destroyed or concealed by your employer.
These conditions are relaxed somewhat, and there is no requirement to have raised the concern with your employer, if you suspect you will suffer a detriment, or that evidence would be destroyed or concealed, if the malpractice or wrongdoing is of an “exceptionally serious nature”. Practically speaking, in relation to wider disclosures, the more serious the matter disclosed is, the more likely the disclosure is to be protected.
What is the time limit for bringing a whistleblowing claim?
Any claim must be brought within three months less one day of the detriment or dismissal, this is referred to as the limitation period. Claims must initially be submitted to ACAS early conciliation, which effectively stops the clock on the limitation period. If ACAS early conciliation fails then a certificate is issued and you will have a new limitation date, by which the claim must be submitted to the Employment Tribunal. We would suggest you seek legal advice on this as if the claim is not brought within the limitation period then it will be out of time and you will lose the right to pursue the claim at an Employment Tribunal (unless very specific, exceptional circumstances apply).
Do employers have to provide a whistleblowing policy?
No – there is no legal obligation to provide a whistleblowing policy but we strongly advise all employers to have one in force. We can provide bespoke whistleblowing policies as well as a full range of other policies which work in conjunction with the whistleblowing policy to accompany and support this.
How can I ensure that I am protected if I decide to blow the whistle on malpractice or wrongdoing?
We would always advise people to take legal advice before making a protected disclosure, in order to ensure that it is done correctly and will be qualifying. Alternatively, Whistleblowers UK (“WBUK”) (http://www.wbuk.org) can provide further information on a confidential basis. WBUK are a not for profit organisation set up to assist whistleblowers and Michael Lewin Solicitors work closely with them.
Tactically speaking, it is in any whistleblowers interests to make a disclosure in writing. Where a disclosure is made verbally it can be more difficult to prove as there may be a dispute to what was actually said. It can take months for a whistleblowing claim to get to a final tribunal hearing and it can be more difficult to persuade a tribunal that a disclosure was ever made, where a disclosure cannot be physically evidenced. Where a written disclosure is made it is far more difficult for the employer to argue that the disclosure was not made – which is usually the first defence any employer facing a whistleblowing claim would put forward.
Where a disclosure is made verbally this does not stop a whistleblower from bringing a claim but its success is likely to depend on the claimant’s witness evidence. Therefore, if you make a verbal disclosure we would strongly advise you to make contemporaneous notes of when it was made, to whom and what exactly was said. This could be in a diary, or your phone or on a personal computer.
If you make a disclosure and you feel that you have or may suffer any detriment, we would advise that you keep a detailed diary of any such detriment to include dates, the detriment you have suffered and by who it has been actioned. This could prove vital evidence if the claim gets to the Employment Tribunal.
If you have already made a protected disclosure, we would advise that you seek legal input with any potential claim at the earliest possible stage. One of the frequent problems encountered by claimants in whistleblowing claims are badly pleaded employment tribunal claim forms. Given that the claim form is the basis of your claim it is essential that it be properly drafted and we would certainly suggest in every case that this be done by a qualified solicitor in order to maximise your prospects of success.
Who regulates whistleblowing in the UK?
Herein lies one of the biggest problems with the current system and why whistleblowers are not afforded the protection that they should be for their courageous efforts in coming forward to report wrongdoing. The short answer is that no one regulates whistleblowing at the moment in the UK. Obviously, there are regulators for most industries (for example the SRA for Solicitors and OFSTED for academic organisations) but there is no overarching body that regulates whistleblowing generally.
Here at Michael Lewin Solicitors we work closely with WBUK and one of the major strategic aims we have to push forward reform in this area is the idea of a regulatory body that oversees whistleblowing as a whole. This is something we strongly believe would aid whistleblowers and is necessary to give greater protection to the people that are making what often turns out to be a great sacrifice by making a protected disclosure.
Please note whistleblowing is an incredibly complex and specialised area of employment law. These FAQs are designed to assist people in understanding the basics of whistleblowing but these are by no means a full and exhaustive explanation of the subject area. If you believe you have a possible whistleblowing claim we suggest you speak to us immediately or contact WBUK in the first instance.
For more information, help and advice, please visit our dedicated Whistleblowing page.