Legal protection for making a protected disclosure, more commonly known as blowing the whistle, was created to encourage workers to come forward and highlight wrongdoing in the workplace. The law protects workers from being treated badly or dismissed by employers in retaliation for raising their genuine concerns.
What to report
A worker is making a protected disclosure if they bring any of the following matters to the attention of management or, where necessary, to an outside agency such as the Health and Safety Executive.
(a) Information about criminal offences;
(b) Information about any failure to comply with legal obligations;
(c) Information about miscarriages of justice;
(d) Information that the health or safety of any individual is being endangered;
(e) Information about damage to the environment, or
(f) The deliberate concealment of information about any of the above.
It is worth noting that opinions and allegations are not the same as information and would not qualify for protection. A worker must hold a reasonable belief that the information that they provide is true. In other words, protection is not afforded to those who make wild statements or merely repeat gossip.
Who to speak to
Many companies have whistle blowing procedures, usually contained within staff handbooks which you should comply with if possible. If the company you work for does not have an official policy you should report the problem to the person you deem the most appropriate.
If a whistle blowing policy requires you to report matters to your immediate manager and you are concerned that your manager is in some way involved in the wrongdoing then you are justified in going above their head to more senior management.
If you believe that the organisation that you work for will attempt to cover up evidence of any wrongdoing then you may consider it necessary to report the matter to an outside agency.
What to do if you report wrong doing and nothing is done about it
If, having made a disclosure about a serious issue, you find that nothing is done about it then you are justified in taking your concerns to an outside agency.
For example, a nurse working in a care home who raises concerns about unsafe staffing levels may wish to report the matter to the Care Quality Commission if no action is taken by her employer.
Timing of a disclosure
Generally speaking, matters which are sufficiently serious to warrant protected disclosures being made are also serious enough to require immediate action. The protection afforded to workers continues to apply even after a worker has left the company.
Case Study: Kerry has been employed as an Administrative Assistant in a Nursery. She becomes aware that the owner is recruiting her friends to work in the nursery and that the appropriate background checks are not being carried out. Kerry reports this matter to an Ofsted Inspector who visits the nursery. Things are very awkward for Kerry after this and she decides to look for another job. She is offered another position but the job is withdrawn when her new employer receives a reference saying that Kerry is a trouble maker who did not get on with the rest of the team.
In this scenario the Nursery has failed to comply with a legal obligation (conducting DBS checks) and she has made a protected disclosure to the Ofsted inspector. She has then been subjected to a detriment (a bad reference) which, despite being after she has left employment, will still be covered by protected disclosure legislation.
Poor treatment following making a protected disclosure
You are protected from being dismissed or subjected to a detriment if you have made a protected disclosure. A detriment is being treated less favourably than you would have been if you had not ‘blown the whistle’. Examples of detriments might be being overlooked for promotion or being subjected to spurious disciplinary investigations.
Claimant’s often have a difficult time proving that the treatment is a result of having made a protected disclosure.
Section 19 of the Enterprise and Regulatory Reform Act 2013 makes employers vicariously liable for acts of other employees in relation to protected disclosures. To put it another way, your employer must take steps to prevent you from being treated badly by other members of staff if you have blown the whistle.
Dismissal for making a protected disclosure
If you have been dismissed and feel that the real reason for your dismissal was that you have made a protected disclosure then it will be up to your employer to prove that there was another fair reason for your dismissal unrelated to your whistle blowing.
How long does the protection last?
Workers who have reported serious wrongdoing are protected even after they have ceased to be employed.
Financial loss: There is no limit on compensation for dismissal following protected disclosure
Non-financial loss: Workers can claim for injury feelings for any detriments suffered as a result of their disclosure.