Whistleblowing – all the key legal facts

The Public Interest Disclosure Act 1998 and the Employment Rights Act 1996 protect workers who make ‘protected disclosures’ in the workplace. If a worker is subjected to detriment because they have made a ‘protected disclosure’, then they could claim against their employer for losses suffered. That’s the whistleblowing law.

If the detriment is severe enough to cause injury, or stress at work, then the worker can claim against their employer for compensation in respect of these injuries.

Qualifying criteria for bringing a claim in the UK

Unlike with many claims in the Employment Tribunal, there is no minimum period of employment required before making a claim. You can claim against your employer if you feel that you have suffered a detriment due to blowing the whistle no matter how long you have worked for them.

In order to pursue a whistleblowing claim, you must show that you have made a ‘qualifying disclosure’ and that you have been subjected to a detriment as a result.

This is explained at section 43B of the Employment Rights Act 1996.

In summary, a ‘qualifying disclosure’ is a disclosure of information which a worker reasonably believes is in the public interest, and tends to show one of the following:

a) that a criminal offence has been committed, is being committed or is about to be committed;
b) that a person has failed, is failing, or is likely to fail to comply with one of his legal obligations;
c) that a miscarriage of justice has been committed, is being committed or is about to be committed;
d) that the health or safety of an individual has been, is being or is likely to be endangered;
e) that the environment has been, is being or is likely to be endangered; or
f) that information relation to one of the above has been, is being or is likely to be deliberately concealed.

It is important to note that the disclosure is not a ‘protected disclosure’ if the worker making it commits a criminal offence when doing so.

Whistleblowing Compensation – what can you expect

Unlike ordinary claims for unfair dismissal in the Employment Tribunal, in claims for a dismissal as a result of making a protected disclosure, the compensation for loss of earnings is not capped by statute, which means that the Employment Tribunal has discretion to decide the amount of compensation awarded.

It is worth noting that whilst this makes it attractive to possible claimants, the basis for an award of damages is still loss of earnings. This means that if the claimant gets a new job shortly after a dismissal on the grounds of whistleblowing, the claim will not be valued at a large amount.

Even where the detriment does not involve dismissal, workers can claim compensation for the detriment suffered as a result of making the disclosure. If psychiatric injury is also suffered, then a separate award can be claimed for this as well.

Employment Tribunal claims must be registered with ACAS for Early Conciliation within three months (less one day) of the date of the earliest act of detriment carried out by your employer (or the last act if this forms part of a series of detrimental acts). If this deadline is not met, then your claim will likely be time barred.

As stated above, these claims are time-sensitive, and can be complex. It is important that you diarise key dates and retain any documentation you may have in relation to your employment and the claim. The more evidence you have in support of your claim, the better. This would be an important factor in proving your claim.

Contact us for free advice

If you want to talk to anyone about whistleblowing prior to talking to anyone inside your organisation that either get in touch with us by emailing employ@michaellewin.co.uk or take a look at Whistleblowing UK for free advice and guidance.

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