What is a whistleblower?

A whistleblower is someone who reports wrongdoing which is in the public interest, also known as a protected disclosure.

Who is protected?

The Employment Rights Act 1996 protects employees from being dismissed and affords protection to both employees and workers from suffering a detriment. Workers can amount to, among others, agency workers, freelance workers, seconded workers, homeworkers and certain job applicants in the NHS.

Dismissal of an employee will be automatically unfair if the reason for dismissal is because they have made a protected act. It is also unlawful for an employer to subject any of its workers or employees to a detriment, which can include threats, disciplinary action, loss of work or pay, or damage to career prospects, on the ground that they have made a protected disclosure.

What is a protected disclosure?

Firstly, a disclosure must be a qualifying disclosure. This must be a disclosure of information that, in the reasonable belief of the employee or worker, tends to show that one of following has occurred, is occurring, or is likely to occur:

• A criminal offence;
• Breach of any legal obligation;
• A miscarriage of justice;
• Danger to the health and safety of any individual;
• Damage to the environment; or
• The deliberate concealing of information about any of the above.

Secondly, the employee or worker must also reasonably believe that the disclosure is in the public interest.

There is no longer a requirement that the disclosure is made in good faith.

Why protect whistleblowers?

Providing protection for whistleblowers is essential for employees as it encourages a culture of speaking-up within the workplace. It can also ensure any internal risks are controlled and avoid tribunal claims against the employer, limiting reputational damage and civil and criminal liability in the process.

How can employers protect whistleblowers?

Employers should ensure that they have a robust whistleblowing policy in place. They should circulate the policy to all members of staff and ensure managers are trained on how to deal with whistleblowing complaints and whistleblowers. This will encourage a culture of speaking out and protecting whistleblowers.

Please note that this is only a brief summary and is not intended to be legal advice. If you would like more information about any of the issues raised in this article or on any other aspect of employment law, please contact us on 029 2034 5511 or at employment@berrysmith.com