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). Courts and tribunals have generally taken a broad approach to interpreting the law on whistleblowing, particularly in the health sector (see the Francis report, pages 72-73).


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.



A complaint that the employer’s actions are morally wrong or undesirable, rather than illegal, is not enough to be protected (Eiger Securities LLP v Korshunova [2017] UKEAT/0149/16/DM). 


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 24-25). 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”. 



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 these conditions endangered her health and safety and 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 the correct question is not whether a disclosure is actually in the public interest, but rather whether the worker reasonably believes this is the case.


A dispute involving 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. 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 (Chesterton Global Ltd & Anor v Nurmohamed & Anor [2017] EWCA Civ 314). In this important case, the Court of Appeal gave a broad interpretation of what “public interest” means. It also provided guidance on the public interest test:


• 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 disclosure will be protected even if public interest was not the worker’s main motivation for making the disclosure;


• whether the worker held a reasonable belief that their intended disclosure was in the “public interest” will depend on the facts of each case;


• a disclosure about someone’s own employment contract or another issue affecting that person’s individual interests (or the private interests of a group of co-workers) can be in the wider “public interest” depending on the facts of the case (see Morgan page 70). 


It is not up to the employer to decide whether an employer is motivated by a public interest in making a disclosure (Beatt v Croydon Health Services v NHS Trust [2017]). 


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.


Dismissal for making a protected disclosure is automatically unfair but to trigger liability the dismissing officer must have been influenced, even if subconsciously, by their belief the employee made the protected disclosure (Royal Mail Group Limited v Jhuti [2017] EWCA Civ 1632).


Whistleblowing compensation is uncapped and an award for injury to feelings can be made, including damages for reputational damage (Small v Shrewsbury & Telford NHS Trust [2017] EWCA Civ 882). 


In a recent case, two maintenance workers employed at a Liverpool prison by private contractor Amey were unfairly dismissed for raising safety concerns with the prison governor. John Bromilow and Harry Wildman were concerned about Amey’s changes to working practices, which meant they had to work alone rather than working in pairs in secure areas of the prison, putting their safety at risk. 


They raised these concerns through an internal grievance, then went to the prison governor to inform him they would take their complaint to the Health and Safety Executive (HSE). Amey then sacked the workers for bringing the company into disrepute. 


An employment tribunal in Liverpool ruled that the pair, who had combined service of 45 years and unblemished disciplinary records, had been unfairly dismissed. A hearing on potential reinstatement and compensation was awaited as the booklet went to press. 


In dismissal cases, interim relief (see page 73) can be claimed if the claimant can satisfy a tribunal they are “likely” to be able to show 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.


Any term in a contract, policy or other agreement, such as a settlement agreement, is void (that is, 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 and talk to their union. 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.