Whistleblowing Law

The Employment Rights Act 1996 protects workers who “blow the whistle” by providing three main rights:

• Protection from dismissal: it makes it automatically unfair to dismiss a whistleblower for making a protected disclosure (ERA 1996 s 103A);

• Protection from detriment: it is unlawful to subject a worker to any “detriment” for making a protected disclosure (ERA 1996 s 47B);

• Protection from breach of contract: any term in the worker’s contract or any other agreement is void in so far as it purports to preclude the worker from making a protected disclosure (ERA 1996 s 43J). It follows that the act of whistleblowing within the terms of the Act will not amount to a breach of contract.

Who is protected by the Employment Rights Act?

The ERA 1996 provides protection to a wide range of individuals:

• Employees;
• Workers (a wider category than employees); 
• Trainees (such as a student nurses);
• Agency workers;
• Member of a Limited Liability Partnership (LLP).

The protection begins on the first day of employment, so it is not necessary to work a minimum of two years to claim protection.

Grievance or disciplinary

If a whistleblower who wishes to pursue a grievance or is disciplined, the employer must follow the ACAS Code of Practice on Discipline and Grievance Procedures. This is set out here 

A failure to do so can increase compensation payable to a whistleblower by 25%.

The right not to suffer a detriment

The general right is contained at ERA 1996 s 47B(1) which provides as follows:

“A worker has the right not to be subject to any detriment by any act, or any deliberate failure to act, by his employer done on the ground that the worker has made a protected disclosure.”

The term ‘detriment’ is not defined in the ERA 1996 but it is a term familiar in discrimination law. For example, ‘detriment’ would include:

• any financial disadvantage – such as paying a worker less;
• bullying or workplace harassment.
• denying promotion;
• requiring him/her to work harder or longer;
• physical discomfort or disadvantage – such as requiring him/her to work unsocial hours;

It is not necessary for the whistleblower to actually suffer economic or physical damage to show that they have suffered a detriment. The test is whether a reasonable worker would or might take the view that the treatment accorded to them had in all the circumstances has been to their detriment (see cases below and Shamoon v Chief Constable of the Royal Ulster Constabulary [2003] IRLR 285, [2003] ICR 337).

It is important to note that a detriment can occur even after employment has been terminated. So, for example, an employer who provides an unfair reference or unfairly spreads rumours about a worker’s incompetence can be pursued.

The right not to be dismissed

The right not to be dismissed due to making protected disclosure is contained in the ERA 1996 s103A.

What is a protected disclosure?

In order to qualify as a “protected disclosure”:

• a “disclosure” must occur (within the meaning of the ERA 1996);
• that disclosure must be a ‘qualifying disclosure’;
• the disclosure must be made by the worker in a manner that accords with ERA 1996 ss 43Cto 43H

What is a disclosure?

The ERA 1996 provides a very broad definition of what amounts to a disclosure: it is ‘any disclosure of information’ (ERA 1996 s 43B(1)).

The definition has been broadened by the finding that a disclosure can arise from an amalgamation of several communications, even if one or more in themselves would not qualify (Shaw v Norbrook Laboratories (GB) Ltd UKEAT/0150/13 [2014] All ER (D) 139 (Mar)).

A disclosure of information will also take place where the information is provided to a person who is already aware of that information (ERA 1996 s 43L).

The most important limitation is that information must be disclosed. It is not enough for a worker to make allegations alone. In Cavendish Munro Professional Risks Management Ltd v Geduld [2010] IRLR 38, EAT it is was stated:

”… the ordinary meaning of giving “information” is conveying facts. In the course of the hearing before us, a hypothetical was advanced regarding communicating information about the state of a hospital. Communicating “information” would be “The wards have not been cleaned for the past two weeks. Yesterday, sharps were left lying around.” Contrasted with that would be a statement that “You are not complying with Health and Safety requirements”. In our view this would be an allegation not information.”

See Case Law below for more detailed analysis

Most cases will involve a disclosure made during the course of the whistleblower’s employment.  However, in Onyango v Berkeley Solicitors [2013] IRLR 338 it was held that the legislative protection can apply to a disclosure made after termination of the employment.

What is a qualifying disclosure?

The ERA 1996 s43B(1) states that a “qualifying disclosure” is any disclosure of information which, in the reasonable belief of the worker making the disclosure, is made in the public interest and tends to show one or more of the following:

(a) that a criminal offence has been committed, is being committed or is likely to be committed,

(b) that a person has failed, is failing or is likely to fail to comply with any legal obligation to which he is subject,

(c) that a miscarriage of justice has occurred, is occurring or is likely to occur,

(d) that the health or safety of any individual has been, is being or is likely to be endangered,

(e) that the environment has been, is being or is likely to be damaged, or

(f) that information tending to show any matter falling within any one of the preceding paragraphs has been, is being or is likely to be deliberately concealed.

The whistleblower must have a reasonable belief that the disclosure is in the public interest and fits into one of the above categories.

The disclosure does not actually have to be true. However, the whistleblower must (in his or her view) believe it to be true. It follows that a disclosure may still be a qualifying disclosure even if it is incorrect.

It is also important to note that the statutory test is a subjective one.

It does not matter whether the “relevant failure” occurred, occurs or would occur in the United Kingdom or elsewhere (ERA 1996, s43B(2)).

A disclosure of information is not a qualifying disclosure if the person making the disclosure commits an offence by making it (ERA 1996, s43B(3)).

How is the disclosure made?

The final element that a worker must demonstrate is that they have disclosed information to the appropriate person or body.

As a general rule, the worker should in the first instance seek to resolve the matter privately within their employer. If the circumstances are such that it is unrealistic or impossible for them to resolve the matter in that way, or if they have already tried to do so without success, then, but only then, would it be appropriate to bring the matter to the attention of a wider audience.

A worker can disclose to the following:

• Disclosure to the employer or other responsible person (ERA 1996, s43C)

A disclosure can be made to the employer or a third party where the worker reasonably believes that the relevant failure relates solely or mainly to:

• the conduct of a person other than his employer, or
• any other matter for which a person other than his employer has legal responsibility, to that other person.

• Disclosure to a legal adviser (ERA 1996, s43D)

A qualifying disclosure is made in accordance with this section if it is made in the course of obtaining legal advice.

• Public employees (ERA 1996, s43E)

Where a worker works for a government agency or quango, then a disclosure made to a government minister is a protected disclosure.

• Other prescribed cases (ERA 1996, s43F(1))

A disclosure may be a protected disclosure if it is made to an appropriate public authority and if the subject matter of the disclosure properly falls within the remit of that authority.

• Publicly (ERA 1996, s43G)

A qualifying disclosure made by a worker to persons other than the above may become a protected disclosure if it is reasonable in all the circumstances for the worker to make that disclosure to that person, and provided certain other conditions are satisfied (ERA 1996 s 43G).

Employer’s liability for co-workers

A whistleblower has a right to bring a claim against an individual co-worker or agent of the employer that subjected them to a detriment because they have made a protected disclosure (ERA 1996 s 47B(1A).

Common defences to whistleblowing claims

Employers on the receiving end of a whistleblowing complaint will often attempt to defend a claim by:

• trying to discredit a whistleblower. It is common for an employer to argue that a whistleblower was treated less favourably or dismissed due to other factors and not the whistleblowing. For example employers will often claim that an employer did not “get on” with others, was rude or unpleasant to other members of staff or management in the workplace or their work was inadequate or poor;

• arguing there has not been a disclosure of “information”;
• arguing that the whistleblower did not have a reasonable belief in the disclosures made;
• arguing that any disclosure was not made “in the public interest”.

Are there any time limits to issuing a whistleblowing claim?

All claims should be submitted to an Employment Tribunal within three months (plus the ACAS conciliation period) of the date of the act. In a case where the conduct of the claim is ongoing rather than just a one-time occurrence, the time limit will begin from the most recent date that the event took place.

If the case involves the whistleblower being dismissed from their job, the time limit begins from the last of employment.

In certain circumstances it is possible for the deadline to be extended – where it was not “reasonably practicable” to submit a claim earlier.

Compensation

There is no statutory cap on compensation where there has been a dismissal or detriment due to whistleblowing. However, all losses must be proved.

It will be necessary to obtain expert advice on what can be claimed.

Determining the level of compensation will depend on a number of factors, these include:

• A basic award;
• How much salary has been lost;
• How much salary will be lost in the future;
• Notice pay;
• Injury to feelings;
• Expenses incurred in mitigating losses (this can include costs incurred in studying or setting up a new business);
• Whether there has been a breach of the ACAS Code of Practice on Discipline and Grievance Procedures;
• Interest.

Can a whistleblowing claim be made anonymously?

A whistleblowing claim can be made anonymously if an employee would rather not reveal their identity. However, it would be difficult to argue that a whistleblower had suffered unfair treatment because of whistleblowing if the employer was not aware of the identity of the whistleblower.

Below is summarised :

• Key cases.
• Main parts of the Employment Rights Act 1996 (“ERA 1996”).

Case Law

Disclosure of information – what must be disclosed?

Cavendish Munro Professional Risks Management Ltd v Geduld [2010] IRLR 38, EAT : it is not sufficient that the claimant has simply made allegations. Justice Slade said :

Smith v London Metropolitan University [2011] IRLR 884, EAT applied the case of Cavendish Munro to make a finding that the raising of grievances about the claimant’s workload as a ‘disclosure’.

Goode v Marks & Spencer plc UKEAT/0442/09 (14 April 2010, unreported) – an employee wrote to a newspaper about possible changes to be made by the employer to the pension scheme. It was held that he was not a whistle blower because all that he had done was to vent his highly adverse opinion of what the employer was proposing.

Western Union Payment Services UK Ltd v Anastasiou UKEAT/0135/13 (21 February 2014, unreported) Judge Eady, applying the Cavendish distinction found that ‘the distinction can be a fine one to draw and one can envisage circumstances in which the statement of a position could involve the disclosure of information, and vice versa. The assessment as to whether there has been a disclosure of information in a particular case will always be fact-sensitive.’

Millbank Financial Services Ltd v Crawford [2014] IRLR 18, EAT complaints by a probationary employee of failure to give feedback, consult or stipulate the length of the probationary period were held to be covered. A qualifying disclosure of an employer’s omission to act, was covered, not just of a positive act.

Kilraine v London Borough of Wandsworth [2018] EWCA Civ 1436. in the Employment Appeal Tribunal ([2016] IRLR 422) the Judge (Mr Langstaff):

The case was appealed to the Court of Appeal. It was held that to be a protected disclosure the disclosure must contain sufficient information to qualify under the ERA 1996, s43B(1).

It was held that there is a spectrum : although pure allegation is insufficient a disclosure may contain sufficient information even if it also includes allegations. Ultimately, this will be a question of fact for the ET, which must take into account the context and background.

Was the information obtained unlawfully?

Bolton School v Evans [2006[ EWCA Civ 1653, [2007] IRLR 140, – an IT teacher, had his complaint about computer insecurity rejected. He hacked into the system to show the insecurity and was disciplined. This led to him leaving and claiming (constructive) unfair dismissal due to whistleblowing.

The EAT rejected his claim because he had been disciplined for hacking, not whistleblowing. The Court of Appeal also rejected his claim because neither the hacking nor informing the headmaster afterwards was a ‘disclosure’.

Panayiotou v Chief Constable of Hampshire Police [2014] IRLR 500 the EAT upheld a decision by a tribunal that a police officer’s dismissal was due to his long-term sickness and his obsessive pursuit of complaints and ‘in no sense whatsoever’ connected with the whistleblowing disclosures made earlier.

Martin v Devonshires Solicitors [2011] ICR 352, an employee was dismissed after making multiple allegations of sex discrimination, which would normally have constituted unlawful victimisation. However, the allegations were totally false and caused by her paranoid delusions. It was accepted that the dismissal was because of her conduct, her refusal to accept the falsity and the likelihood of further disruptive behaviour in the future.

Detriment

Bolton School v Evans [2006[ EWCA Civ 1653, [2007] IRLR 140 : It is not enough to demonstrate that the employee has suffered as a result of the employer’s act or deliberate omission to act. It must further be shown that the employer’s act or omission was ‘done on the ground that’ the employee had a protected status or did a protected act. That is to say, there must be a causal connection between the employee’s protected act or status and the employer’s decision.

Fecitt v NHS Manchester [2012] IRLR 64 : The employer must prove on the balance of probabilities that the detriment was not because the employee had done the protected act – meaning that the protected act did not “materially influence” (in the sense of being more than a trivial influence) the employer’s treatment of the whistleblower.

Automatic unfair dismissal

Kuzel v Roche Products Ltd [2008] IRLR 530 : when an employee positively asserts that there was a different and inadmissible reason for his dismissal, such as making protected disclosures, he must produce some evidence supporting the positive case. That does not mean, however, that in order to succeed in an unfair dismissal claim, the employee has to discharge the burden of proving that the dismissal was for that different reason. It is sufficient for the employee to challenge the evidence produced by the employer to show the reason advanced by him for the dismissal and to produce some evidence of a different reason.

Compensation

In Virgo Fidelis Senior School v Boyle [2004] IRLR 268 the EAT stated that subjecting a whistleblower to a detriment was a form of discrimination and confirmed that awards of compensation for injury to feelings in whistleblowing detriment cases were available and should be based on the guidelines applicable to discrimination cases (see Vento v Chief Constable of West Yorkshire Police (No 2) [2003] IRLR 102.

EMPLOYMENT RIGHTS ACT 1996

Free access to the Employment Rights Act 1996 is available here :

http://www.legislation.gov.uk/ukpga/1996/18/contents

THE RIGHT NOT TO SUFFER DETRIMENT 

s47B(1) Right not to suffer detriment – protected disclosure

QUALIFYING DISCLOSURE

43B Disclosures qualifying for protection.

(1) In this Part a “ qualifying disclosure ” means any disclosure of information which, in the reasonable belief of the worker making the disclosure, is made in the public interest and tends to show one or more of the following— 

(a) that a criminal offence has been committed, is being committed or is likely to be committed,

(b) that a person has failed, is failing or is likely to fail to comply with any legal obligation to which he is subject,

(c) that a miscarriage of justice has occurred, is occurring or is likely to occur,

(d) that the health or safety of any individual has been, is being or is likely to be endangered,

(e) that the environment has been, is being or is likely to be damaged, or

(f) that information tending to show any matter falling within any one of the preceding paragraphs has been, is being or is likely to be deliberately concealed.

(2) For the purposes of subsection (1), it is immaterial whether the relevant failure occurred, occurs or would occur in the United Kingdom or elsewhere, and whether the law applying to it is that of the United Kingdom or of any other country or territory.

(3) A disclosure of information is not a qualifying disclosure if the person making the disclosure commits an offence by making it.

(4) A disclosure of information in respect of which a claim to legal professional privilege (or, in Scotland, to confidentiality as between client and professional legal adviser) could be maintained in legal proceedings is not a qualifying disclosure if it is made by a person to whom the information had been disclosed in the course of obtaining legal advice.

(5) In this Part “ the relevant failure ”, in relation to a qualifying disclosure, means the matter falling within paragraphs (a) to (f) of subsection (1). 

43C Disclosure to employer or other responsible person.

(1) A qualifying disclosure is made in accordance with this section if the worker makes the disclosure —
(a) to his employer, or
(b) where the worker reasonably believes that the relevant failure relates solely or mainly to—
(i) the conduct of a person other than his employer, or
(ii) any other matter for which a person other than his employer has legal responsibility,
to that other person.

(2) A worker who, in accordance with a procedure whose use by him is authorised by his employer, makes a qualifying disclosure to a person other than his employer, is to be treated for the purposes of this Part as making the qualifying disclosure to his employer.

PROTECTION FROM DISMISSAL

Sources

1. Harvey on Industrial Relations and Employment Law (available from Lexis Nexis (www.lexisnexis.co.uk)).
2. Industrial Relations Law Reports (available from Lexis Nexis (www.lexisnexis.co.uk)).

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