The Whistleblowing provisions of the Employment Rights Act 1996 give an employee protection against dismissal or any other detriment if the employee makes a protected disclosure.
You may have become aware of something at work which you consider should be brought to the attention of the authorities or to the wider public. However, you have duties of loyalty and confidentiality to your employer and breach of these duties could lead to dismissal without compensation and possibly even legal action against you. The law gives you protection but only if you go about things in the right way.
To be protected as a whistleblower you need to make a ‘qualifying’ disclosure about your employer’s malpractice. A qualifying disclosure could be about:
- a criminal offence that has been committed or is likely to be committed
- breach of a legal obligation
- a miscarriage of justice
- a danger to health and safety
- a danger to the environment
The geographical location of the wrongdoing (i.e. whether inside or outside the UK) is irrelevant.
There are a number of ways in which you may make a protected disclosure:
- you may make it to your employer
- you may make it to a legal adviser
- you may make it to an organisation prescribed for that purpose (normally a regulator or professional body).
You can make the disclosure to someone other than the above and still be protected but only if:
- you make it in good faith
- you reasonably believe the information to be substantially true
- you do not make the disclosure for the purpose of personal gain
- one of a number of stringent conditions is satisfied
- in all the circumstances it is reasonable to make the disclosure.
Normally this option will only be open if you have reason to believe that you will be subject to some detriment if you make the disclosure to your employer or that the disclosure will be concealed or not acted on. Even then you must carefully choose the person to whom you make the disclosure and justify your actions.
If you are dismissed for making a protected disclosure you are able to bring an unfair dismissal claim even if you have not been employed with the company for a year. An unfair dismissal claim must be brought within 3 months of the last day of employment. If you are not dismissed but suffer some detriment for making the disclosure, you can bring a claim to the employment tribunal for compensation.
If you bring a whistleblowing claim and it is successful you may be awarded compensation in an employment tribunal. This compensation is partly calculated in the same way as a redundancy payment but there will be additional compensation for loss of earnings and benefits. This is not limited like compensation in other unfair dismissal claims. You may also receive an award for injury to feelings (which is common in discrimination cases).
If you not dismissed, but some detriment is imposed on you, for example you are demoted, you are entitled to compensation for the financial loss this causes you. You may also receive an award for injury to feelings.
Our solicitors can advise you on all aspects of grievance and whistleblowing procedure.