Whistleblowing — the Public Interest Disclosure Act 1998



The Public Interest Disclosure Act 1998 (PIDA 98) gives employees and workers specific legal rights if they disclose information about alleged wrongdoing at work, including alleged breaches of duty in relation to health, safety and welfare. PIDA gives workers the right not to suffer a detriment (for example the loss of a promotion) or be victimised (for example being unjustly disciplined) for “blowing the whistle”. In the case of employees, PIDA protects them from unfair dismissal. Any dismissal for making a protected disclosure would be automatically unfair. PIDA protection is available from day one of the employment.


Whistleblowing rights are available to all employees and all workers. This includes casual and zero hour contract workers, agency workers, contract workers, members of a limited liability partnership, and in some circumstances, workers who contract via their own personal service company (Keppel Seghers UK Ltd v Hinds [2014] IRLR 754). Some trainees, such as student midwives or nurses, are also protected.


Whistleblowing law is very complicated and it is not always clear who can claim protection. For example, volunteers are unlikely to be protected. The same is likely to be true of most interns unless there is evidence of a legal agreement to do work. The genuinely self-employed (those in business on their own account, offering their services to their own clients and customers) are not protected.


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 their 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 that disclose information about one or more of the following scenarios:


• a criminal offence has been, or is likely to be, committed;



• there has been a failure to comply with a legal obligation;



• a miscarriage of justice has occurred, or is likely to occur;



• health and safety is endangered;



• the environment is, or is likely to be, endangered; or



• information on any of the above is being concealed.



To qualify as a “protected disclosure”, the complaint must convey “information”, not just make “allegations”. The distinction is often unclear. However, someone 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).


The disclosure must be made to the employer, or if the worker does not want to do this, it must be made to a “prescribed person”. This will normally be a regulator such as the HSE. There is a list of appropriate enforcement authorities on the HSE website, on the page “Is HSE the correct enforcing authority for you?” (see pages 26-27). A trade union rep is not a prescribed person.


An important change was made to whistleblowing law in 2013 with the addition of a new “public interest” test. The change means that for a disclosure to be protected by PIDA 98, not only must it contain information that relates to one of the categories listed above but also, the worker making it must reasonably believe it to be “in the public interest”. 



In an important ruling, Chesterton Global Limited v Nurmohamed [2015] UKEAT 0335/14/0804, the Employment Appeal Tribunal (EAT) confirmed that it is not up to the tribunal 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).


A worker who makes a protected disclosure can still rely on the rights set out in PIDA 98 even if their belief later turns out to have been mistaken, as long as they reasonably believed it to be correct when they made it.


An individual dispute over a worker’s contract terms or physical working conditions will not normally be in the public interest. But sometimes this kind of dispute can have wider public interest implications. A dispute involving safety concerns is likely to be a typical example, although each case will always depend on its own facts. For example, in Morgan v Royal Mencap Society [2016] UKEAT/0272/15/LA, Morgan complained to her employer, mental health charity Mencap, about her cramped working conditions. She felt that these conditions endangered her health and safety and that they would shock the public if they knew about them. Allowing her appeal against an employment tribunal finding that this was not a matter of public interest, the EAT judge confirmed that the correct question is not whether a disclosure is actually in the public interest, but rather whether the worker reasonably believes that this is the case.


A dispute that involves an individual worker’s contract terms can be in the “public interest” even if it only affects a small group of other people, such as co-workers, as long as the individual who makes the disclosure refers to the interests of those other people at the time of making it. This makes good sense to unions, since they believe that in general, disputes at work are best resolved by groups of workers acting collectively.


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 was decided in the case of Chesterton Global Limited v Nurmohamed [2015] UKEAT/0335/14/0804 (see above). This important case returned to the Court of Appeal on 8 June 2017 for a ruling on whether the EAT’s interpretation is correct, but it will be several months before the judgement is delivered.


In a recent case, a general GMB union member sacked after blowing the whistle about faulty catering equipment won compensation after taking an unfair dismissal case against his employer with the backing of the union.


An employment tribunal ruled that employer Number 1 Bar Limited had unfairly dismissed head chef Marcelo Lagos from his job at the company’s bar in London Bridge after he raised concerns about a grill and deep fat fryer after suffering a burn to his hand.


Lagos was told the kitchen where he worked was closing and he was dismissed in May 2015. However, the kitchen did not close and food continued to be served after he left. The tribunal found that his “disclosures” were “in the public interest”, as required under the law protecting whistleblowers, because anyone who came into the kitchen was likely to be endangered by the faulty equipment.


As long as a disclosure is in the “public interest”, a worker will still be protected even though when making it, they were motivated by bad faith or malice. However, the tribunal can cut any compensation award by up to 25% if they decide that the disclosure was not made in good faith.


The whistleblowing legislation also protects against bullying of the whistleblower by co-workers, who can be held personally liable alongside the employer. The employer will be liable even if the bullying took place without their knowledge or approval, unless they can show they took all reasonable steps to prevent the behaviour, before it happened.


Whistleblowing compensation is uncapped and an award for injury to feelings can be made. In dismissal cases, interim relief can be claimed if the claimant can satisfy a tribunal that they are “likely” to be able to show that their dismissal was for whistleblowing. Interim relief must be sought within seven days of the dismissal, so urgent legal advice must be taken. Interim relief, if granted, can result in reinstatement, re-engagement or, more likely, an order for the employer to continue paying wages and other benefits under the employment contract until the claim has been decided or the dispute settled (see also page 73).


Like any other employment tribunal claim, tribunal fees must be paid to bring a claim for whistleblowing. (For more on tribunal fees see pages 74-75).


Any term in a contract, policy or other agreement, such as a settlement agreement, is void (i.e. it has no legal effect) to the extent that it tries to prevent a worker making a protected disclosure.


Whistleblowing law is extremely complicated and the information set out above is a summary only. Anyone contemplating blowing the whistle should take expert advice as soon as possible. One of the best sources of advice is national specialist charity Public Concern at Work (www.pcaw.org.uk). The charity runs a confidential whistleblowing Advice Line: 020 7404 6609.