Whistleblowing


Under the Public Interest Disclosure Act 1998 (PIDA), employees and workers who disclose information about alleged wrongdoing at work (“whistleblowing”) have specific rights, including the right not to suffer a detriment or be victimised, and in the case of employees, the right not to be unfairly dismissed for blowing the whistle.


The law on whistleblowing is complicated and anyone contemplating blowing the whistle should seek expert advice. One of the best sources of advice is national charity Public Concern at Work (PCAW) (www.pcaw.org.uk) which runs a helpline. What follows is a brief summary only.


Whistleblowing protection is available to “workers”, including all employees, some trainees such as student nurses and midwives, agency workers, contract workers and members of limited liability partnerships.


Volunteers are not protected. Neither are the genuinely self-employed. Interns are not protected unless they are “workers” (see Chapter 2, page 56).


Agency workers can bring a whistleblowing claim against both the end user and the employment agency, as long as the end user is mainly responsible for deciding the contract terms, or decides them jointly with the agency (McTigue v University Hospital Bristol NHS Foundation Trust [2016] UKEAT 0354/15/2107).


Whistleblowing protection is available for complaints disclosing information about:



• a criminal offence, e.g. insurance fraud or tax avoidance; 



• failure to comply with a legal obligation; 



• health and safety;



• risk or actual damage to the environment;



• a miscarriage of justice; and



• a belief that information about one of the above is being concealed.



To be protected, the disclosure needs to convey “information”, not just make “allegations”. This distinction is often unclear, but what is clear is that a worker who makes generalised allegations without providing reasonably specific information to back them up is unlikely to be protected (Kilraine v London Borough of Wandsworth [2016] UKEAT/0260/15/JOJ).


Workers should make the disclosure to their employer or, if they do not want to do this, to a “prescribed person”. This will normally be a regulator, such as the HSE or HMRC or the specific regulator for the relevant sector. In February 2016, the government published an updated online list of “prescribed persons”. A trade union rep is not a prescribed person. 



In 2013, the government changed whistleblowing law in important ways, in particular by introducing a new “public interest” test (section 17, Enterprise and Regulatory Reform Act 2013 (ERRA 13), amending section 43B, ERA 96). As a result, to qualify for protection, as well as the need for their disclosure to fall within one of the categories listed above, the worker must reasonably believe that the disclosure is “in the public interest”.



It is not the tribunal’s job to decide whether a disclosure really was in the “public interest”. All that matters is that the whistleblower genuinely and reasonably believed this to be the case at the time of making it, whether or not they were correct (Chesterton Global Limited v Nurmohamed [2015] UKEAT/0335/14/0804).



An individual dispute over a worker’s contract terms or physical working conditions would not normally be in the public interest, but sometimes this kind of dispute will have wider public interest implications. An example could be a dispute concerning workplace health and safety. Whether an individual dispute is in the public interest will depend on the facts of each case (Morgan v Royal Mencap Society [2016] UKEAT/0272/15/LA). 



A disclosure that is a complaint about a worker’s own contract terms or working conditions can be in the wider public interest even if it affects only a very small group of other people, for example, fellow managers at work, as long as the whistleblower refers to the interests of these other people when making the disclosure (Chesterton Global Limited v Nurmohamed [2015] UKEAT/0335/14/0804). 



If a disclosure is in the wider public interest, it does not matter that it is also in the whistleblower’s private interest, or in the private interests of everyone whose contract is affected:


This important case is under appeal and a Court of Appeal ruling is expected in June 2017. It will decide whether the EAT’s interpretation of the “public interest” test is correct. 



Provided a disclosure is made in the public interest, a whistleblower will be protected by PIDA even if motivated by bad faith or malice. However, tribunals can cut any compensation by up to 25% if they decide that the disclosure was not made in good faith. 



In 2013, whistleblowing law was extended to provide protection for whistleblowers who are bullied or harassed by co-workers (section 19, ERRA 13). They can be held personally liable for work-related harassment alongside their employer, who will be liable even if the bullying happened without their knowledge or approval, unless all reasonable steps were taken to prevent the unacceptable behaviour.



Dismissal for making a protected disclosure is automatically unfair. When establishing whether the disclosure was the main reason for the dismissal, it does not matter that the decision-maker did not know about the whistleblowing if other managers did know, and that knowledge influenced the outcome of the final decision (Royal Mail Group Limited v Jhuti [2016] UKEAT/0020/16/RN).


A worker who makes a protected disclosure is protected even if their belief later turns out to be mistaken, as long as they reasonably believed it to be true when they made it.



Compensation for whistleblowing is uncapped and an award for injury to feelings can be made. In dismissal cases, interim relief can be claimed if the claimant can show they are “likely” to succeed in showing that the dismissal was for whistleblowing. Interim relief must be sought within seven days of dismissal. Urgent legal advice should be taken.



Any term in a contract, policy or other agreement, such as a compromise or settlement agreement, is void in so far as it seeks to prevent the worker making a protected disclosure.