Whistleblowing plays a major part in uncovering dishonesty and wrongdoing in the workplace, for the good of colleagues as well as the wider public. Many people throughout history have risked not only their jobs, but their lives, in order to promote the truth by blowing the whistle. But even with the best intentions, choosing to become a whistleblower requires sound knowledge of the process and legalities. Ella Sheppard, associate and solicitor specialising in employment law at Nelsons, discusses the intricacies of whistleblowing and how to stay protected.
It is important to first note that making a protected disclosure – known to many as ‘whistleblowing’ – means the worker is immune to dismissal or redundancy linked with making that disclosure and is also shielded from any maltreatment (also referred to as a ‘detriment’) following the disclosure being made.
In order for the disclosure to be deemed a ‘qualifying’ one, there are a number of requirements that must be satisfied.
Merely voicing a concern, expressing an opinion or making an allegation is not enough to pass this first requirement. The disclosure must include sufficient factual and specific content, that will later be thoroughly assessed.
Before moving forward with whistleblowing, there must be a reasonable belief that the allegations suggest one or more specified types of wrongdoing. This will depend on the information available at the time of disclosure, and it is the worker’s responsibility to establish the belief is theirs and reasonably held – even if not factually accurate or true.
Pursuant to the Employment Rights Act 1996, types of wrongdoing can include criminal offences, failure of legal obligation and the endangerment of health and safety to an individual. If it is alleged that something is likely to occur in the future, the worker must reasonably believe that it is more likely than not that it will occur.
The whistleblower must report their disclosure under one of the protected ways. This could be done by speaking with the worker’s employer, disclosed in the course of obtaining legal advice or, in certain circumstances, be made to a relevant regulatory authority, or other bodies or persons.
While there is no legal definition of what is classed as ‘in the public interest’, generally, this means that a disclosure cannot relate to a purely personal matter. The Employment Tribunal has confirmed in recent cases that it is not enough for there to be just one person’s interest at stake. Some factors to consider as to whether a disclosure is in the public interest include the number of individuals whose interests are served, the extent to which those interests are affected, and the identity of the alleged wrongdoer.
While it may be the intention to leave a job following a disclosure, being forced out of it through whistleblowing can be grounds for unfair dismissal. The individual must believe they have been dismissed for the main reason being that they made a protected disclosure.
It is worth bearing in mind that all workers can bring unfair dismissal claims for whistleblowing detriment as there is no qualifying period of employment for such claims. If an individual succeeds in a whistleblowing claim, the Employment Tribunal has the power to award uncapped compensation.
The rules on time limits to bring a claim in the Employment Tribunal are very strict. Generally speaking, and subject to any extension for time spent participating in ACAS early conciliation, an individual has three months from the date of the act complained of – whether that be the termination of their employment or the detriment caused by them blowing the whistle as the case may be – to bring a claim.
The legal test to establish that a disclosure is a ‘qualifying disclosure’ is a complex one and much will depend on the circumstances at hand. It is therefore recommended if you are considering bringing a claim for whistleblowing detriment or unfair dismissal that you seek legal advice at the earliest possible opportunity.
For more information on Nelsons’ advice regarding whistleblowing, please visit: www.nelsonslaw.co.uk/employee-rights/whistleblowing-solicitors/