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 or bringing this kind of tribunal claim should seek some expert advice. One of the best sources of confidential support and guidance is expert national charity Public Concern at Work (PCAW) (www.pcaw.org.uk).

A dismissal for making a protected disclosure is automatically unfair. No qualifying service is needed. The claim must be brought within three months. See Chapter 1 for information on issuing claims in the employment tribunal.

In June 2013, changes were made to PIDA by the Enterprise and Regulatory Reform Act 2013 (ERRA 13). Here are the key changes:

• to be protected by PIDA, a disclosure must now be made “in the public interest”. This reverses previous case law that suggested that 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;

• a disclosure in the public interest will be protected by PIDA even if the worker is motivated by animosity. It is no longer necessary for a claimant to demonstrate “good faith” in order to be protected. However, tribunals can still 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 now protected if they are bullied or harassed by co-workers. This new protection mirrors the framework already used to tackle discrimination and harassment by co-workers under the Equality Act 2010 (see page 182 of Chapter 6). Co-workers can be held personally liable for harassing the whistleblower, and provided the bullying takes place in the course of employment, the employer is also liable. This is the case even if the bullying takes place without the employer’s knowledge or approval, unless the employer can show they took all reasonable steps to prevent the unacceptable behaviour taking place in the first place, for example by:

• having a clear open door policy encouraging transparency and whistleblowing, with clear confidential reporting procedures;

• publicising a policy of zero tolerance of bullying and harassment;

• implementing the procedure effectively;

• inducting and training staff.