Whistleblowing is the popular term for public disclosure about a range of issues which might constitute “wrongdoing”.
Most employment contracts contain covenants which might prevent disclosure – called restrictive covenants.
However, when wrongdoing has taken place and an employee makes this public or reports it to the authorities, they are protected under the Public Interest Disclosure Act 1998 – often referred to as the Whistleblowers’ Act.
Many employees may fear if they disclose illegal or unethical practices in the workplace, they will lose their job – or may face censure from colleagues or their profession.
Many high-profile cases involving poor, negligent or wilfully negligent care in the NHS or private health sector have come to public attention because of whistleblowers, however – and public disclosure about issues of bad practice in organisations can help protect the vulnerable and expose corruption.
Who is protected by the Whistleblowers’ Act?
Employees are protected by the Public Interest Disclosure Act – as well as other staff, such as agency workers, trainees and freelance workers.
It is important to realise that not all whistleblowers are protected under the Act, however, as there are uncertain activities which are classed as a “qualifying disclosure”, including:
- Breach of legal duty
- Criminal activity
- Environmental damage
- Health and Safety breaches
- Miscarriages of Justice.
A qualifying disclosure would also involve any attempt to conceal any of the above breaches or activities.
Disclosure to the media is known as an external disclosure – and protection under the Act would depend on the gravity of the disclosure and any details being in the public interest, rather than an employee acting for reasons of malice or for financial gain.
How are Whistleblowers protected by law?
Under the Public Interest Disclosure Act, an employee who makes a public disclosure about illegal, unethical or negligent practices in the workplace is protected in several ways:
- The employee or whistleblower does not have to resign
- The employee is protected from being treated unfairly because of disclosure
- An employer cannot dismiss a whistleblower.
If a whistleblower is dismissed by an employer as the direct result of a qualifying disclosure, it is possible to make a claim for unfair dismissal at an Employment Tribunal – in these cases it is likely that any claim would be accepted by the tribunal automatically.
How to make a Qualifying Disclosure
There is a procedure that must be followed before turning whistleblower:
- An employee must take up the matter with their employer before disclosure
- An employee must report the matter to the relevant authority before disclosure (eg regulatory body or investigating authority)
- The employee must act in good faith
- The employee must have a reasonable belief that the incident to be disclosed actually occurred (i.e. is not hearsay or gossip or speculation).
We can advise employees at any stage of a public disclosure – and strongly advises any employee considering making a qualifying disclosure to talk to one of our specialist employment law solicitors about whistleblowing and protection under the Public Interest Disclosure Act.