Protection of whistleblowers

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 very 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” (see Chapter 2). This includes 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. 


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.


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 general regulator, such as the HSE or HMRC or the specific regulator for the sector in which the employer operates. In February 2016, the government published online an updated 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 introducing a new “public interest” test (section 17, Enterprise and Regulatory Reform Act 2013 (ERRA 13), amending section 43B, ERA 96). To qualify for protection under PIDA, as well as falling within one of the categories listed above, the worker must reasonably believe that their disclosure is “in the public interest”.


It is not the job of a tribunal to decide whether the 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 the disclosure, whether or not this was correct (Chesterton Global Limited v Nurmohamed [2015] UKEAT/0335/14/0804).


An individual dispute over a contract term, or about physical working conditions, would not normally be in the public interest but this kind of dispute could have wider public interest implications. An example could be a dispute concerning workplace health and safety. Whether or not a 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 also 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 worker 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 case is under appeal to the Court of Appeal who are expected to rule later in 2016, on whether or not the EAT’s interpretation of the public interest test is the correct one. 


Meanwhile, the case was followed in this ruling against logistics company Wincanton:


Provided a disclosure is made in the public interest, a whistleblower will be protected by PIDA even if they are motivated by bad faith or malice. However, tribunals can cut 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 now be held personally liable for work-related harassment, alongside their employer, who will be liable even if the bullying happened without the employer’s knowledge or approval, unless all reasonable steps were taken to prevent the unacceptable behaviour.


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


Compensation for whistleblowing is uncapped and an award of injury to feelings can be made. In dismissal cases, 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).


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.