Legal Q&A: whistleblowing

Q What legislation governs whistleblowing?

A The Public Interest Disclosure Act 1998, which came into force on 2 July 1999, governs whistleblowing. This Act was incorporated into the Employment Rights Act 1996, and introduced sections 43A to 43L and section 103A into the 1996 Act.

Q Must a worker meet a service qualification to gain protection under the whistleblowing legislation?

A Individuals are protected under the whistleblowing legislation, irrespective of their length of service (unlike ordinary unfair dismissal cases, where there is a service qualification of one year). The legislation covers workers as well as employees. The definition of ‘worker’ for the purposes of the legislation extends to groups, such as agency workers and independent contractors.

Q What is a worker required to show in order to bring a claim under the whistleblowing legislation?

A A worker must show that they have made a protected disclosure, that they have followed the correct procedure and that he or she was dismissed or suffered a detriment for making the disclosure.

Q To gain protection under the whistleblowing legislation, a worker must have a reasonable belief in the disclosure and any such disclosure must be made in good faith. What does this mean?

A A worker should preferably have evidence or information that tends to show that the malpractice being disclosed occurred. Whether the worker has a reasonable belief will often depend on the facts of the case, together with the information available to the worker at the time the disclosure is made.

Generally, making a disclosure in good faith means acting with honest motives. Employment tribunals look at the purpose of making a disclosure in considering whether a worker has made the disclosure in good faith. Clearly, a disclosure made for a motive such as malice or antagonism will not be made in good faith, but often a disclosure is made for mixed motives, which will be more problematic. It is, however, ultimately a question of fact for the tribunal to decide.

Q What protection does the whistleblowing legislation give to a worker who has made a protected disclosure?

A A worker who has made a protected disclosure under the whistleblowing legislation has the right not to suffer a detriment or to be dismissed as a result.

If the reason, or the principal reason, for dismissing a worker is because they have made a protected disclosure, they may make a claim to an employment tribunal. The service requirement of one year needed to bring a claim of unfair dismissal will not apply, and the dismissal will be classed as automatically unfair.

If a worker suffers a detriment as a result of making a protected disclosure, for example by being subjected to less favourable treatment such as not receiving a promotion, they may also make a claim to an employment tribunal.

Q What is the level of compensation that can be awarded if a worker is successful in bringing an action under the whistleblowing legislation?

A The usual remedies for unfair dismissal apply, namely reinstatement, re-engagement and compensation. However, there is no limit to the amount of compensation that can be awarded in an unfair dismissal claim that is related to whistleblowing. Also, in unfair dismissal cases brought by former employees, tribunals can grant interim relief by making a continuation of employment order pending the final determination of the case.

Q What should an employer consider when drafting a whistleblowing policy?

A Employers should ensure that it is easy for employees to understand and use. The policy should provide an overview of the legislation in a basic format and set out the procedures to be followed. It should identify the standard of behaviour that the employer expects to see and establish a procedure that enables the worker to disclose malpractice to someone in the company at a level that bypasses the level at which the problem may exist.

Provision should be made for any worker who wishes to make a disclosure in confidence and the employer should set out the procedures that it will follow when investigating disclosures. The policy should set out what penalties may be imposed if an employee makes malicious allegations, or avoids using the employer’s procedures without reasonable cause. The employer may wish to involve employees and representatives in any consultation process to implement the whistleblowing policy. It should be clear to employees that the policy is there to address their concerns.

Staff members who operate the policy should be trained to resolve any matters that arise in line with the policy and procedures.

There is a benefit for the employer in having a whistleblowing policy as it makes it more difficult for workers to justify making a disclosure outside the company and encourages internal resolution of issues.

Sarah-Marie Williams is a solicitor in the employment team at Clyde & Co