What is whistleblowing?
The official name for whistleblowing is ‘making a disclosure in the public interest’, however it is much more commonly called ‘blowing the whistle’ or ‘whistleblowing’. It means that if you believe there is wrongdoing in your workplace (eg your employer is committing a criminal offence) you can report this by following the correct processes, and your employment law rights are protected.
If you decide to blow the whistle on an organisation you are protected by employment law and your employer cannot victimise you (eg by not offering you a promotion or other opportunities your employer would have otherwise offered).
Whistleblowers are given employment law protection for public interest, to encourage people to speak out if they find malpractice in an organisation or workplace.
Malpractice could be improper, illegal or negligent behaviour by anyone in the workplace.
Employment law protection for blowing the whistle
You are protected as a whistleblower by employment law if you:
- are a ‘worker’
- believe that malpractice in the workplace is happening, has happened in the past or will happen in the future
- are revealing information of the right type (a ‘qualifying disclosure’)
- reveal it to the right person, and in the right way (making it a ‘protected disclosure’)
‘Worker’ has a special wide meaning in the case of whistleblowing. As well as employees it includes, agency workers and people who aren’t employed but are in training with employers. Some self-employed people may be considered to be workers for the purpose of whistleblowing if they are supervised or work off-site.
Your employer can’t prevent you from making a protected disclosure as part of your employment contract or other agreement between you and your employer.
Blowing the whistle on overseas malpractice
You are protected even if you are blowing the whistle on malpractice that took place overseas, or where the law applying to the malpractice is not a UK law.
To be protected as a whistleblower you need to make a ‘qualifying disclosure’ about malpractice. This could be a disclosure about:
- criminal offences
- failure to comply with a legal obligation
- miscarriages of justice
- threats to an individual’s health and safety
- damage to the environment
- a deliberate attempt to cover up any of the above
There are some disclosures that can’t be qualifying disclosures. You won’t be protected for whistleblowing under employment law if:
- you break the law when making a disclosure (for example if you signed the Official Secrets Act as part of your employment contract)
- the information is protected under legal professional privilege (eg if the information was disclosed to you when someone wanted legal advice)
Protected disclosures and employment law
For your disclosure to be protected by employment law you should make it to the right person and in the right way. You must:
- make the disclosure in good faith (which means with honest intent and without malice)
- reasonably believe that the information is substantially true
- reasonably believe you are making the disclosure to the right ‘prescribed person’
If you make a qualifying disclosure in good faith to your employer, or through a process that your employer has agreed, you are protected. You should check your employment contract to see if your employer has set out a process for whistleblowing.
If you feel unable to make a disclosure to your employer then there are other ‘prescribed people’ you can make a disclosure to. If you are unsure, you should always get professional advice before going ahead. Anything you say to a legal adviser in order to get advice is automatically protected.
You could make a qualifying disclosure to the person responsible for the area of concern to you. For example, you might raise concerns about health and safety with a health and safety representative.
In some circumstances you may be able to make a disclosure to someone who isn’t prescribed. More information on prescribed persons is contained in the ‘blowing the whistle on workplace wrongdoing’ article.
Dismissal or victimisation for whistleblowing
If you are dismissed or victimised for whistleblowing, the protection you are offered is different depending on whether you are an employee or worker.
If you are an employee protected from whistleblowing and you are dismissed for complaining about malpractice at work, you can make a claim for unfair dismissal, even if you don’t have one year’s service.
If you have been victimised or suffered detrimental treatment (eg you have been demoted or denied promotion), because of blowing the whistle you may be able to take your case to an Employment Tribunal. Your claim would be for ‘detrimental treatment’.
If you are not an employee and your contract has been terminated or you have been victimised you should be able to take your case to an Employment Tribunal and claim that you have suffered ‘detrimental treatment’.