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 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 extremely complicated and unsatisfactory, and anyone thinking of blowing the whistle should first seek expert advice.

As a result of important changes to PIDA made in 2013, whistleblowers who make a protected disclosure can now bring a tribunal claim if they are bullied or harassed by their co-workers, who 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. The “reasonable steps” defence mirrors the defence available to employers in the case of discrimination or harassment by their employees, explained earlier in this Chapter.

The legal and practical barriers in the path of a whistleblower who is contemplating a claim under PIDA are formidable. In particular:

• they must reasonably believe their disclosure to be in the public interest;

• they must make the disclosure to one of a prescribed list of regulators found in section 1 of PIDA. Trade unions are not included;

• they must reasonably believe their allegations to be true (they will still be protected if they later turn out to have been mistaken);

• they must not be a member of one of the many groups who are not protected by PIDA, including volunteers, interns, foster carers, GPs or non-executive directors;

• they must have revealed “information”, not opinion. The law does not protect disclosure of opinion, innuendo, gossip or suspicion; and

• the information disclosed must relate to a criminal offence, failure to comply with a legal obligation, a miscarriage of justice, health, safety or the environment.

A disclosure in the public interest will be protected by PIDA even if the whistleblower is motivated by bad faith or malice, but tribunals can cut compensation by up to 25% if they decide that the disclosure was not made in good faith.

Interim relief is available. This is a temporary remedy available in a narrow range of unfair dismissal claims (including trade union victimisation claims). Interim relief must be sought within seven days of dismissal. If successful, the application will result in the claimant’s wages and other benefits continuing to be paid up to the tribunal hearing date.

From 5 April 2015, whistleblowing protection has been extended to student nurses and midwives.

A dismissal for making a protected disclosure is automatically unfair. No qualifying service is needed.

Legal aid cuts have caused many problems for whistleblowers who, since 2013, have been denied access to publicly funded representation even though the law is extremely technical. PCaW research published in May 2015 showed that just a third (32%) of whistleblowers who represented themselves won their case.

For more detailed information on whistleblowing law, see LRD’s annual employment law guide Law at Work (www.lrdpublications.org.uk/publications.php?pub=BK&iss=1771).