Who is protected by the law?


The law provides whistleblowing protection to all “workers”. Genuine volunteers (including many interns) have no protection. Neither do the genuinely self-employed. 


As well as protecting “employees” and anyone with ordinary “worker” status under section 230, ERA 96 (see page 34, Chapter 2), whistleblowing law covers a wider range of individuals. It does this by using a special extended statutory definition of the term “worker” which applies only in the context of whistleblowing (section 43K, ERA 96). The Court of Appeal has confirmed that a broad approach must be taken to the law to achieve parliament’s aim of protecting whistleblowers (Day v Health Education England [2017] EWCA Civ 329).


With a few specific exceptions (see below), a person will only be protected by whistleblowing law if there is a contractual relationship in place (Sharp v The Bishop of Worcester [2015] EWCA Civ 399). However, that contract does not have to be with the organisation that victimises the whistleblower. It is enough if that organisation has a substantial role in setting the terms of the whistleblower’s employment or assignment. Agency workers who are victimised by the organisation where they are assigned to work can bring a whistleblowing claim against that organisation (McTigue v University Hospital Bristol NHS Foundation Trust [2016] IRLR 742). A whistleblowing claim can also be brought against the employment agency. 


In Day v Health Education England [2017] EWCA Civ 329, Dr Day alleged that he was victimised by the Trust where he worked and also by Health Education England, the body responsible for his training, after raising concerns about over-staffing. The Court of Appeal ruled that he could bring his claim against both bodies. They were both his “employers” for the purposes of whistleblowing law, because they both had a substantial role in deciding his terms of employment. 


Whistleblowing law protects someone who supplies their services through a personal service company (Croke v Hydro Aluminium Worcester Limited [2007] ICR 1303). Members of a limited liability partnership also qualify for protection (Bates van Winkelhof v Clyde & Co [2014] IRLR 641). So do homeworkers, as long as there is a contractual relationship. 


Certain NHS practitioners, NHS job applicants, nurses and midwives in approved training, trainees on work experience, police constables and police cadets all qualify for specific whistleblowing protection (section 43, ERA 96).