Whistleblowing

Under the Public Interest Disclosure Act 1998 (PIDA), employees and workers who disclose information about alleged wrong doing 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.

A dismissal for this reason will be automatically unfair. There is no qualifying period and no upper age limit. A claim must be brought in the employment tribunal within three months of the dismissal or detriment.

In an important change introduced by the Enterprise and Regulatory Reform Act 2013 (ERRA 13), from 25 June 2013 to be protected by PIDA a worker must make the disclosure “in the public interest”. This “public interest” test was introduced to reverse case law that suggested a worker could claim whistleblowing protection for complaining about breaches to their own employment contract — in a case known as Parkins v Sodexho [2002] IRLR 109. However, campaigners are concerned that this new test is likely to deter potential whistleblowers, who may be fearful as to whether or not particular wrongdoing is likely to be judged in the public interest.

To be a protected disclosure, the information must be disclosed to one of the categories of person listed in section 1 of PIDA. There are six potential categories, including a list of regulators such as the Health and Safety Executive, HMRC or the Care Quality Commission. The law is designed to strongly discourage workers from making disclosures to the media or for personal gain.

A worker is protected if the allegation later turns out to be mistaken, as long as they reasonably believed it to be true and did not act maliciously. Changes introduced under the ERRA 13 from 25 June 2013 have removed the express requirement for the disclosure to be made in good faith.

The law on whistleblowing is very complicated. Anyone contemplating blowing the whistle should seek confidential advice from expert national charity Public Concern at Work (PCAW) (www.pcaw.org.uk)

Compensation is uncapped and an award of injury to feelings can be made. Interim relief may be available where a claimant can show they are “likely” to succeed in showing that a dismissal was for whistleblowing. It must be sought within seven days of dismissal (see Chapter 5).