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