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 to be victimised, and in the case of employees, the right not to be unfairly dismissed for blowing the whistle. The law on whistleblowing is very complicated and anyone contemplating blowing the whistle should seek expert advice. One of the best sources for that advice is national charity Public Concern at Work (PCAW) (www.pcaw.org.uk) who run a helpline.

A dismissal for making a protected disclosure is automatically unfair. No qualifying service is needed. The claim must be brought within three months. As with all other claims, the first step, which must be taken inside the three-month limitation period, is to submit an Acas Early Conciliation Notification Form, available on the Acas website. See Chapter 13 for information on Acas Early Conciliation and on issuing claims in the employment tribunal.

In June 2013, changes were made to PIDA by the Enterprise and Regulatory Reform Act 2013. The main change introduced a new public interest test. To be protected by PIDA, a disclosure must be in the public interest. In an important new case, Chesterton Global Limited v Nurmohamed [2015] UKEAT/0335/14/0804, the EAT has interpreted this new public interest test. What matters, says the EAT, is whether the whistleblower reasonably believes that their disclosure is in the public interest, not whether their belief is correct.

The case also establishes that “public interest” in this context has a narrow meaning. Although an individual contract dispute will not normally be in the public interest, disclosure to a quite small group of people can be. As long as the disclosure is in a wider public interest, it does not matter that it is also in the whistleblower’s private interest, or in the private interests of everyone affected:

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

Workers who make disclosures in the public interest are protected if they are bullied or harassed by co-workers. Co-workers can be held personally liable for work-related harassment, alongside the employer. The employer will be liable even if the bullying takes place without their knowledge or approval, unless they can show they took all reasonable steps to prevent the unacceptable behaviour.

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 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 an allegation later turns out to be mistaken, as long as they reasonably believed it to be true.

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

From 5 April 2015, whistleblowing protection has been extended to student nurses and midwives (Protected Disclosures (Extension of Meaning of Worker) Order 2015).

The Small Business Enterprise and Employment Act 2015 will introduce a requirement for “prescribed persons” to publish an annual report providing anonymised details of disclosures made to them under the whistleblowing legislation and what action they have taken. Regulations are needed to implement this change to the law, which is not yet in force.