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Whistleblower Protection

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The act of disclosing protected information is commonly known as ‘blowing the whistle’. The individual responsible for bringing the information is known as ‘whistleblower.’

If you inform your employer about any malpractice at work, then the law protects you from any detriments including dismissal.

Moreover, if you suffer a detriment or dismissal from work due to whistleblowing, you can seek legislative intervention by bringing a claim to the Employment Tribunal. Let us take a closer look at the various aspects of whistleblower protection in the United Kingdom.

Who is protected by the Law?

The categories of working personnel who are protected by law include:

  • employees (those who currently work or have worked previously under a contract of employment); and,
  • workers (those who work or have earlier worked under a contract of employment and have undertaken to perform personally any kind of work or services for another party who is a client or customer);

However, genuinely self-employed individuals who are managing their own businesses would thus be excluded from whistleblower protection.

What types of information fall under protected disclosure?

In a protected disclosure, an individual must provide information if he or she has a plausible belief that a malpractice will probably occur or has occurred. In addition, the act must not be in the public interest and should relate to specific subject matters, namely:

  • a criminal offense
  • a miscarriage of justice
  • a breach of legal obligation
  • a threat to an individual’s health and safety;
  • a premeditated attempt to hide any of the above matters;

Recognised methods of disclosure

A disclosure can be made to an employer, legal advisor or any minister of the Crown. Likewise, it can also be made to any prescribed body or individual entrusted with the responsibility of investigating malpractices within certain types of organisation, such as the Inland Revenue, the FSA, or the Health and Safety Executive.

While the disclosures to the employer are not subjected to any stringent conditions, those done to any prescribed body are subject to an intermediate level of conditions.

External disclosures

These disclosures are those for the Press, the Police, Union Representatives or MP’s for example. Moreover, the individual must reasonably believe that the disclosed information is essentially true and that, it is not made for personal gain. In order to make the disclosure, the individual must satisfy at least 1 of 3 further conditions, namely:

  • at the time of the disclosure, the individual must reasonably believe that they will be subjected to dismissal from work or any such detriment if they raise the concern with the employer; or
  • where no person is prescribed, the individual reasonably believes that the evidence is likely to be destroyed or concealed if they inform the employer; or
  • the individual has previously made a disclosure of essentially the same information, to either his or her employer or to the prescribed person.

External disclosures are subject to the most stringent conditions.

Exceptionally serious failures

In these cases, the employee reasonably believes that the disclosed information is:

  • essentially true;
  • the imminent failure is exceptionally serious;
  • the disclosure is not made for personal gain;
  • and given the serious circumstances of the case, it is plausible for the employee to make the disclosure.

Here, any dismissal for “whistleblowing” is automatically considered to be unfair. Therefore, the Public Disclosure Act 1998 removes the ceiling when it comes to any compensatory award presented in a dismissal case for protected disclosure.

Likewise, the Act also provides for a higher value, additional award, in cases where there is a failure to re-engage or reinstate.

How does the law protect you?

Whistleblowing protection extends immunity to individuals from being unjustly dismissed (if the disclosure is of protected nature). In addition, there is no eligibility requirement for the duration of employment to obtain such protection. Moreover, there is no upper cap on a tribunal compensation, should the individual win the case.

As the whistleblower, you will also receive protection if you are “victimised” after you have disclosed a malpractice. This includes being subject to unjustified scrutiny, being ignored, being set inflexible targets or demotion.

Here, the responsibility lies with the employer to present evidence that the whistleblowing individual was not subjected to a detriment because of the disclosure.

If your case is presented to the tribunal and it is proved that the disclosure was made with ulterior motives (for example, the whistleblower had some personal gain), the tribunal has the sanction to lessen the compensation by up to 25 percent.

Finally, you must consider that there are some stringent timelines in submitting a claim. Usually, there is a 3 month period from the date the act in question is committed, to make the claim (although, there are situations in which there is an ongoing course of conduct; wherein, the timeline only runs from the end of that duration.)