Whether an employee’s complaint is classed as a protected disclosure is critical to determine if they are protected as a whistleblower.
By understanding the meaning of a protected disclosure within the context of whistleblowing, this can help employers to respond appropriately to employee concerns and complaints about any wrongdoing at work without falling foul of the law.
Organisations are increasingly taking a positive approach to whistleblowing in the workplace. Encouraging workers to raise issues and concerns without fear of recrimination or detriment supports the development of an open and transparent culture with a commitment to resolving problems.
What is a protected disclosure?
A protected disclosure is a qualifying disclosure that is made by a worker that they reasonably believe shows serious wrongdoing within the workplace. This will typically relate to some form of dangerous or illegal activity that the person has witnessed at work, where they “blow the whistle” to either their employer directly, a member of senior management or the appropriate regulatory body.
Subject to the disclosure satisfying all of the relevant statutory requirements under the Employment Rights Act (ERA) 1996, the worker will be protected by law from any form of unfair treatment at work, including dismissal, because they have reported past, present or even potential wrongdoing.
There are several common examples of complaints that fall within the scope of whistleblowing law including, for example, the commission of a criminal offence such as bribery and corruption, or where a company or organisation is deliberately breaching obligations relating to health and safety at work.
What are the criteria to be a protected disclosure?
Not every concern raised or complaint made by a worker will count as whistleblowing. For a whistleblowing disclosure to be classed as a protected disclosure under the ERA, all of the following requirements must be met:
- There must be a “qualifying disclosure” within the meaning of the ERA
- This must be in the public interest
- This must be made to an appropriate or prescribed person or body
A qualifying disclosure
A qualifying disclosure is defined under the ERA as any disclosure of information that, in the reasonable belief of the worker making the disclosure, tends to show one or more of the following:
- That a criminal offence has been committed, is being committed or is likely to be committed
- That a person has failed, is failing or is likely to fail to comply with any legal obligation to which they are subject
- That a miscarriage of justice has occurred, is occurring or is likely to occur
- That the health or safety of any individual has been, is being or is likely to be endangered
- That the environment has been, is being or is likely to be damaged, or
- That information tending to show any matter falling within any one of the above has been, is being or is likely to be deliberately concealed
To count as a qualifying disclosure, the information provided by the worker must relate to one of these six types of relevant failure – from the commission of a crime to concealing evidence relating to a wrongdoing – ‘and’ the worker must have a reasonable belief that the information tends to show one of these failures has happened, is happening now or believes will happen.
A worker need not necessarily be correct about their concerns or complaint, as long as they have reasonable grounds for believing that the information disclosed is substantially true, and that this belief was honestly held in all the circumstances prevailing at the time of the disclosure. Protection is not afforded to those who make wild allegations or are merely repeating gossip.
In the public interest
To fall within the scope of the ERA, the worker making the disclosure must also reasonably believe that they are acting in the public interest in reporting the wrongdoing, or potential wrongdoing, in question. Essentially, they must have reasonable grounds for believing that the information disclosed will have, or is likely to have, an impact on other people.
A complaint will not usually count as a qualifying disclosure where it can be characterised as purely a personal grievance, rather than a public concern, for example, bullying, harassment and discrimination – although the law does offer protection for workers against this form of unlawful treatment in other ways.
A disclosure of information is also not a qualifying disclosure if the person making the disclosure commits an offence by doing so. This could be, for example, where a worker leaks official information in contravention of the Official Secrets Act. In these circumstances, regardless of the public merit of the information revealed or whether any damage to national interests was actually caused, an individual may still be prosecuted for the commission of an offence.
This also means, that in these limited circumstances, the individual would not be afforded any legal protection as a whistleblower.
To the right person or body
For a qualifying disclosure to be protected under the ERA, it must be made to an appropriate or prescribed person or body. This can be either to the whistleblower’s employer, or to any other person within the company or organisation whom they reasonably believe to be solely or mainly responsible for the relevant failure.
A disclosure may also be protected if it is made to an outside person or agency. If an employee decides to blow the whistle to a prescribed person rather than directly to you, as their employer, they will need to report the matter to the correct person or body for their particular concern or complaint.
This must be the appropriate regulatory body designated for the purpose, for example, for bribery and corruption matters they should report their concerns to the Director of the Serious Fraud Office, or for breach of health and safety issues, this should be brought to the attention of the Health and Safety Executive.
Who can make a protected disclosure?
To make a protected disclosure, the individual must be a worker. However, under the ERA, a “worker” has a special and wide meaning, providing protection to all different kinds of prospective whistleblowers. As well as employees, it includes agency workers, apprentices and trainees.
It is also worth noting that any confidentiality clause within an individual’s contract of employment, or any gagging clause within a settlement agreement, will be not preclude the worker from making a protected disclosure.
How does the protected disclosure have to be made?
Where a worker has genuine concerns or evidence of actual or potential wrongdoing at work it is open to them to report the matter at any time.
In many whistleblowing cases, the worker will report their concerns directly to the employer in the first instance, although where they feel unable to do so, for example, because of fears that they may be penalised or that evidence may be concealed or destroyed, they can report the matter to an outside agency.
If you have a written whistleblowing policy, for example, contained within a staff handbook, the worker ought to follow any procedures set down within that policy, although any failure to do so will not necessarily lose them the protection afforded under the ERA.
If the individual makes a report anonymously, the matter may not be able to be taken further if they have not provided sufficient information needed to do so. The whistleblower may also choose to provide their name, but request confidentiality. If, on the other hand, the worker reports their concerns to the media, they are likely to lose any legal rights as a whistleblower.
Is a whistleblowing policy needed?
A whistleblowing policy is not a strict statutory requirement, although setting out in writing your rules and procedures on reporting wrongdoing within the workplace, will demonstrate your commitment to comply with the law here.
This will also help to create an environment for workers to feel comfortable in speaking up without fear of reprisal, with clear guidance on how to make a protected disclosure and how they can expect this to be handled.
In some cases, the existence of a written whistleblowing policy can even act as a deterrent, preventing potential wrongdoing within your company or organisation that could seriously damage the reputation of your business.
An effective whistleblowing policy should set out the framework for managing protected disclosures. This includes detail of who is protected by the provisions, in what circumstances and how the disclosures are to be handled.
You could even go as far as explaining to the prospective whistleblower what feedback they can expect to receive if they raise concerns or make a complaint of wrongdoing, and what steps that can be taken if they are not happy with how the disclosure has been dealt with.
How should a protected disclosure be dealt with?
If the worker raises concerns with you or makes a complaint of wrongdoing within the workplace, you will need to decide on what action to take, and whether or not further inquiries need to be made.
If the worker has asked for confidentiality, you must make every effort to protect their identity when investigating the matter. Even though the whistleblower does not have any say in how the wrongdoing is dealt with, you should also keep them informed of any progress, subject to complying with any data protection laws and protecting the confidentiality of others where requested.
It is important to remember that if the whistleblower is not satisfied with how the matter has been dealt with, for example, where the wrongdoing is continuing, they may decide to report the matter to an outside agency, so you should endeavour to resolve the matter as quickly and effectively as possible.
It is also important that you do not treat the whistleblower any differently after a protected disclosure has been made, otherwise risk a complaint being lodged with the employment tribunal for unfair treatment.
That said, being a whistleblower only affords a worker protection against dismissal or detrimental treatment for that reason only, and not for any misconduct or poor performance on their part.
You can still take disciplinary action, or even dismiss a worker, for reasons wholly unrelated to their disclosure, although caution must be exercised to avoid any disciplinary sanction or decision to dismiss being misconstrued as detrimental treatment because of whistleblowing.
What protection will a whistleblower be afforded by law?
Any worker who makes a protected disclosure that falls within the scope of the ERA has the right not to be dismissed or subjected to any detriment by his or her employer on the ground that the individual has “blown the whistle”.
A detriment could include the whistleblower being overlooked for promotion or training opportunities, or being subjected to spurious disciplinary investigations. Further, if a whistleblower loses their job for a reason related to them making a protected disclosure, this would be classed as automatically unfair.
It’s also important to remember that, as an employer, you can be held vicariously liable for any acts of victimisation or detrimental treatment committed by other workers, unless you can demonstrate that you took all reasonable steps to prevent this treatment from taking place.
There is no limit on compensation following dismissal arising out of a protected disclosure, although a tribunal can reduce any compensation by up to 25% if they think the disclosure was made by the worker in “bad faith”.
As employer solutions lawyers, DavidsonMorris’ employment lawyers bring specialist experience in whistleblowing matters. We can advise on whistleblowing policies and defending claims, and deliver training for key personnel on identifying and handling protected disclosures. For guidance on any aspect of whistleblowing at work, contact us.
UK workers and employers are entitled to certain protections if they “make a disclosure in the public interest” regarding their employer’s or a third party’s actions. Encouraging your workforce to make any such disclosures in line with a specific procedure and reassuring them of their protected position if they do so, may be necessary and invaluable to a business. It is also important that there is clarity across the organisation of how to handle issues relating to whistleblowing. A whistleblowing policy plays a critical role in ensuring a consistent, effective and compliant approach to whistleblowing.
Protected disclosure FAQs
What is a protected disclosure?
A protected disclosure is a qualifying disclosure under the Employment Rights Act 1996 that is made by a worker that they reasonably believe shows serious wrongdoing within the workplace. This will typically relate to some form of dangerous or illegal activity that the person has witnessed at work.
Who is covered by a protected disclosure?
To be covered by a protected disclosure the whistleblower must be a worker. However, “worker” has a special and wide meaning, providing protection not only to employees, but also to agency workers, apprentices and trainees.
Can whistleblowers claim compensation?
If a whistleblower is subjected to dismissal, or any other detriment, by his or her employer on the grounds that s/he has made a protected disclosure, that individual will be entitled to claim damages for being treated unfairly. There is also no limit on compensation for dismissal following a protected disclosure.
Last updated: 13 October 2020