Whistleblowing and Employment Law

Whistleblowing is one of the most complex and riveting areas of Employment Law. It’s an area that gains a lot of press coverage because of the often high profile nature of issues involved. Edward Snowden, the CIA whistle-blower, is an international example of the controversy and publicity that can arise it situations of a high profile disclosure of sensitive information- as is the recent Panama Papers scandal. Whistleblowing cases are of course also found a lot closer to home- particularly emanating from the NHS.

What it is:

Whistleblowing is the reporting of suspected wrongdoing or dangers in relation to the activities of an employer. This includes bribery, fraud or other criminal activity, miscarriages of justice, health and safety risks, damage to the environment and any breach of legal or professional obligations. The relevant legislation for much whistleblowing protections is the Employment Rights Act (ERA) 1996. 

The scope of whistleblowing protection:

• Whistleblowing protections apply to all workers, regardless of their standing in the business
• There is no general duty on employees to report suspected wrongdoing- however the courts have in a number of cases developed the implied term of fidelity as a mechanism for imposing a duty on workers with a managerial or supervisory status to do so
• Whistleblowing protections are not limited to employees- but also extend to workers. Further, the normal definition of worker (see section 230(3) of the ERA 1996) is extended for the purpose of whistleblowing law.  This means that agency workers, limited liability partners, placement staff- e.g. student nurses- and others who do not fit within the strict definition of employee do not miss out.
• Members of the armed forces, the Security Service, the Secret Intelligence Service and GCHQ are specifically excluded
• Police officers are however included within the scope of the legislative protections
• There is no longer a requirement that a disclosure has to be made in good faith- meaning that the worker does not have to have acted with honest intentions so long as he satisfies the provisions of the test below.

The test:

Whether a whistle-blower qualifies for protection under the statutory regime is dictated by reference to the following test:

1. Have they made a qualifying disclosure? (Section 43b ERA 1996)

First and foremost in assessing whether a qualifying disclosure has been made is deciding whether or not there has actually been a disclosure- a threat of doing so will not suffice;

The subject matter of the disclosure must relate to one of the six types of relevant failure:

I. Criminal offences (section 43B(1)(a), ERA 1996)

II. Breach of any legal obligation (section 43B(1)(b), ERA 1996)

III.Miscarriages of justice (section 43B(1)(c), ERA 1996)

IV. Danger to the health and safety of any individual (section 43B(1)(d), ERA 1996

V. Damage to the environment (section 43B(1)(e), ERA 1996).

VI.The deliberate concealing of information about any of the above (section 43B(1)(f), ERA 1996).

The worker must hold a reasonable belief that the information shows one of the relevant failures (above) and -post June 2013- that the disclosure is in the public interest.

2. The second limb of the test for assessing qualification for whistleblowing protections is- is it also a protected disclosure? (sections 43C-43H, ERA 1996):

• Generally a disclosure should be made to the worker’s employer- but can be made to a “responsible” third party or “prescribed person”.

Here at Lawson West our dedicated Employment Team are well versed in this area of the law and can provide practical and easy to understand advice to Employees and Employers alike on the likely pitfalls and key points to look out for in making or defending a whistleblowing claim.

Please contact Ashley Hunt and Carrie-Ann Randall on 01858 445480 or Vaishali Thakerar and Sejal Patel on 0116 212 1000.

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