The Law on Whistleblowing

WHAT IS WHISTLEBLOWING 

Whistleblowing refers to the disclosure of wrongdoing that a worker has seen at work. You may disclose the information to your employer or to a third party. The right to whistleblow is an important right that the law affords to workers. A common misconception is that you have to be employed by a government department in order to legally whistleblow. This isn’t true. In fact, a worker has the legal right to whistleblow regardless of whether they work for a private company or a government body.

QUALIFYING DISCLOSURE 

In order to enjoy certain legal protections, the disclosure of information must be a “qualifying disclosure”, but not every wrongdoing at work will count as a “qualifying disclosure” under the Employment Rights Act 1996 (ERA). Under the ERA a disclosure of information is a qualifying disclosure if the worker making the disclosure reasonably believes that they are making the disclosure in the public interest.

PUBLIC INTEREST TEST 

The public interest test has been broadly interpreted by the courts so that it may now include issues such as bonuses and pay to workers. A good way to ascertain if a disclosure is in the public interest is to ask yourself this question: how many people does this issue currently affect. If you are satisfied that the issue affects a reasonably large number of people then the “public interest” test may be satisfied. Recent case laws indicate that an issue that affects 100 or more people will pass the public interest test. In many other cases, it will be obvious to the observer that the public interest test has been met.

In order for the information to amount to a qualifying disclosure the information disclosed must reveal one or more of the following:

  1. Criminal offence
  2. Failure to comply with a legal obligation
  3. Miscarriage of justice
  4. Endangerment of health and safety
  5. Damage to the environment.

It is immaterial whether the failure or offence referred to above occurred in the UK or whether the applicable law is a UK or foreign law. If the worker commits an offence by disclosing the information then the disclosure will not amount to a qualifying disclosure.

UNFAIR DISMISSAL

The Employment Rights Act 1996 protects workers that make qualifying disclosures. Under the 1996 Act a worker who is dismissed for making a qualified disclosure will be deemed as unfairly dismissed. Unlike most employment rights there is no qualifying period of employment. Therefore, for the purposes of whistleblowing, your length of service with your employer is immaterial and it will be automatically deemed as unfair dismissal if the only or main reason for the dismissal is that you made a protected disclosure.

 

 

We offer training and advice on this subject. For more information about whistleblowing, you can reach us at ask@penerley.com or call us on 0203 488 3078

GDPR

BACKGROUND

The General Data Protection Regulation (GDPR) is an EU regulation that comes into force in May 2018.

EU regulations are legally binding on all member states and automatically come into force on the specified date. There is a difference between regulations and directives — directives set standards and requirements which member states are free to decide how to transpose into national laws.

Article 5 of the GDPR sets out the key requirements for organisations processing personal and sensitive data of EU residents. The GDPR is a minimum threshold and member states may introduce more specific provisions.

The GDPR replaces the Data Protection Directive 1995. It has been adopted by the UK and replaces the Data Protection Act 1998.

Unlike the previous Data Protection Directive 1995, the GDPR seeks to harmonise data protection rules across the EU to further protect data and make it simpler for organisations to do business across the EU.

GDPR also applies to organisations outside the EU if those organisations collect data of an EU resident.

APPLICATION OF GDPR

The Regulation applies to controllers and processors. Controllers determine the purposes and means of processing personal data, while processors are responsible for actually processing personal data. The contracts between controllers and processors must also comply with the regulation.

The GDPR places certain legal obligations on processors of personal data. A processor will be legally liable if they are responsible for a breach of the regulation.

Data must be collected for specified, explicit and legitimate purposes. The lawful basis for processing data must be identified and highlighted to those whose personal data are being collected. Consent of the data subject is important to ensure that data collection is lawful.

Data must be processed in a manner to ensure the security of the personal data. Individuals whose data have been collected have the right to: be informed; access the data; amend; erase; object to the collection and storage of such data.

Data should be accurate and kept up-to-date and where possible inaccurate data should be erased. Data should be kept for no longer than necessary, but may be stored longer for archiving and research purposes.

Any firm that breaches the GDPR may be fined 4% of its annual global turnover or 20 million Euros, whichever is greater.

EXCEPTIONS TO GDPR

  • Data covered by the Law Enforcement Directive.
  • Data processed for national security purposes.
  • Data processed by individuals for personal use.

 

We offer training and advice on this subject. If you wish to learn more about GDPR then you can reach us at ask@penerley.com or call us on 0203 488 3078

Dispute Resolution Schemes

There are several ADR schemes out there and different firms or industries may choose to settle disputes through a specific scheme. The type of ADR scheme used to settle dispute will determine the process and the outcome you get. The three main forms of ADR are:

Arbitration — This is the process by which a dispute between parties is heard and determined by an independent person (arbitrator) appointed by the parties concerned. The determination of the arbitrator is legally binding.

Adjudication — An adjudicator is an independent person with expertise in the area of dispute. The arbitrator will consider evidence submitted by both parties before reaching a decision. Unlike arbitration, adjudication is not legally binding and parties may proceed to court if they are still not satisfied with the outcome of the adjudication.

Conciliation and mediation — In mediation an independent and impartial person talks to the parties separately or together with the aim of reaching a solution that is acceptable to the parties. The mediator does not take sides, rather the mediator acts as a conduit for resolving the underlying issues. Although similar to mediation, conciliation primarily focuses on the outcome desired by both parties and is less concerned with the underlying issues that caused the dispute.

Our clients appoint us to represent them during the ADR process in order to protect their interests. We also provide advice and toolkit to our clients who elect to personally manage the process.

We offer training and advice on this subject. For more information, you can reach us at ask@penerley.com or call us on 0203 488 3078

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