Whistleblowing: The basics

Employers know relatively little about whistleblowing until the issue comes up at which stage it is quite important to get to grips with it fast.

Whistleblowers have two levels of protection.  The dismissal of an employee will be automatically unfair if the reason or principle reason for the dismissal was because they made a protected disclosure.  Whistleblowing legislation however goes beyond that and also protects workers from being subject to any detriment on the same basis.  There is no financial cap on compensation for whistleblowing claims and no requirement for a minimum period of service.

The key issues are:

• Has the worker or employee made a qualifying disclosure of information of a particular subject matter and do they have a reasonable belief that the information shows a failure.
   
• The disclosure must also qualify as a protected disclosure which broadly depends on who they make the disclosure to.

The categories covered by the legislation are extremely wide, covering criminal offences, breach of any legal obligation, miscarriages of justice, danger to the health and safety of any individual, damage to the environment or the deliberate concealing of information about any of those issues.  The wrongdoing can be past, present, prospective or merely alleged.  Since June 2013, a disclosure has to satisfy the public interest test.

In practice, most qualifying disclosures will be made to the employer themselves but they can be made to others providing certain requirements are met.  There exists a list of prescribed persons and the relevant matters for which each is prescribed including such bodies as HM Revenue & Customs, the Audit Commission, the Health & Safety Executive and the Financial Conduct Authority.  In practice, disclosure to media outlets will only be protected in very limited circumstances and if it leads to personal gain for the worker, it may fall foul of the regulations.  Whistleblowing issues can override any confidentiality clauses in contracts and it is important for employers to have a whistleblowing policy, so that both employees and internal managers know how to deal with these important issues when they arise.