Workers who make “protected disclosures” known as “whistleblowing” are protected from dismissal, selection for redundancy and from being subjected to a detriment such as disciplinary action, refusal of a pay increase or promotion.

Protected disclosure

Any whistleblowing claim must arise from a “protected disclosure”. This is a disclosure of information which the worker reasonably believes is made in the public interest and tends to show one or more of certain types of wrongdoing which include:

  • Criminal offence

  • Failure to comply with legal obligations

  • Miscarriage of justice

  • Endangerment of health or safety

  • Damage to the environment

  • Deliberate concealment of any of these things.

A disclosure should normally be made to the individual’s employer. If the employer has a whistleblowing policy, this should be read and followed.

Types of Claim

The three types of whistleblowing claim include:

  1. Automatic unfair dismissal for whistleblowing, which can be brought by employees with no minimum level of service. This is in contrast to ordinary unfair dismissal claims which require two years’ service.

  2. Unlawful detriment whistleblowing claim, which may be brought by a worker.

  3. Claims for whistleblowing detriment by a co-worker or an agent of the employer, which may be brought by a worker.

Whistleblowing Guidance and Code of Practice

The Government has previously published Whistleblowing Guidance for Employers and a Code of Practice. The Code of Practice has no statutory force.

To reduce the risk of any potential whistleblowing claims, it is best practice for an employer to:

  • have a whistleblowing policy or appropriate written procedures in place.

  • ensure the whistleblowing policy or procedures are easily accessible to all workers.

  • raise awareness of the policy or procedures through all available means such as staff engagement, intranet sites, and other marketing communications.

  • provide training to all workers on how disclosures should be raised and how they will be acted upon.

  • provide training to managers on how to deal with disclosures.

  • create an understanding that all staff at all levels of the organisation should demonstrate that they support and encourage whistleblowing.

  • confirm that any clauses in settlement agreements do not prevent workers from making disclosures in the public interest.

  • ensure the organisation’s whistleblowing policy or procedures clearly identify who can be approached by workers that want to raise a disclosure. Organisations should ensure a range of alternative persons who a whistleblower can approach in the event a worker feels unable to approach their manager. If the organisation works with a recognised union, a representative from that union could be an appropriate contact for a worker to approach.

  • create an organisational culture where workers feel safe to raise a disclosure in the knowledge that they will not face any detriment from the organisation as a result of speaking up.

  • undertake that any detriment towards an individual who raises a disclosure is not acceptable.

  • make a commitment that all disclosures raised will be dealt with appropriately, consistently, fairly and professionally.

  • undertake to protect the identity of the worker raising a disclosure, unless required by law to reveal it and to offer support throughout with access to mentoring, advice and counselling.

  • provide feedback to the worker who raised the disclosure where possible and appropriate subject to other legal requirements. Feedback should include an indication of timings for any actions or next steps.

If you require any advice on whistleblowing policies or defending a whistleblowing claim, please get in touch with Farleys’ employment law team on 0845 287 0939 or contact us by email.