Whistleblowing - a guide to the law (October 2019)

Chapter 4

4. What types of disclosures are protected

[ch 4: page 20]

To be protected, there must be a qualifying disclosure (section 43A, ERA 96), and it must be made in a particular way (sections 43C to 43H, ERA 96). Chapter 5 looks at who the disclosure must be made to. This Chapter looks at what is meant by a qualifying disclosure and highlights some of the many legalistic barriers to protection.

A disclosure of information can be protected whether it is made verbally or in writing. However, a claim is much more likely to succeed if there is clear written evidence of the disclosure, showing why it qualifies for protection and when it was made.

A video recording can be a protected disclosure. In Aspinall v MSI Forge Limited EAT/891/01, a worker arranged for his colleague on the night shift to make a video of a hoist, to use as evidence in his personal injury claim. Unfortunately, the video also captured a confidential production process, and this led to disciplinary action. The EAT confirmed that a video can be a protected disclosure (although it was not protected in this case).


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