Think You Might Have a Whistleblowing Claim?
What Is Whistleblowing?
Whistleblowers such as Edward Snowden are not popular with their employers and they are likely to be fired. Employment law therefore protects those who expose unlawful conduct by making what is called a “protected disclosure”. It is unlawful to dismiss such a person or to penalise her in some other way such as denying her promotion or giving her a poor appraisal. Compensation is unlimited and there is no two year qualification period for this form of unfair dismissal.
Whistleblowers such as Edward Snowden are not popular with their employers and they are likely to be fired. Employment law therefore protects those who expose unlawful conduct by making what is called a “protected disclosure”. It is unlawful to dismiss such a person or to penalise her in some other way such as denying her promotion or giving her a poor appraisal. Compensation is unlimited and there is no two year qualification period for this form of unfair dismissal. What is a “protected disclosure”? Whether a disclosure is protected depends in part on its subject matter. If you reasonably believe that one of the following is happening, has happened or is likely to happen in the future in your place of work, namely:
- A criminal offence;
- The breach of a legal obligation;
- A miscarriage of justice;
- A danger to the health and safety of any individual;
- Damage to the environment; or
- A deliberate attempt to conceal any of the above,
then a disclosure of that information can be a protected disclosure. It is important that you reasonably believe that the disclosure you make is true. It cannot be a fictitious accusation, unsubstantiated rumour or an opinion. So long as you reasonably believe its true you will be protected, even if you turn out to be wrong. It is important to note, however, that in most cases, the initial disclosure must be to your employer. Many employers have whistleblowing policy and it is important that you follow it. You need expert advice if you think that there is some reason why you cannot do this. Further details about this are contained below. In practice, you would be well advised to make the disclosure in writing (so that you can prove later that it occurred) making sure that you set out the facts upon which you rely for your belief that one of the above has happened/is likely to happen. This is because the legal definition of a protected disclosure requires there to be a setting out of information –it is not enough to make an accusation. However, you should be careful if you decided to investigate what is going on. If you break your contract or company rules on e.g. computer use during your investigation the company may be able to argue that your were sacked not for disclosing but for improperly investigating. What protection do I get? Essentially, if you make a protected disclosure and you are dismissed and/or suffer detriment for doing so, you are likely to have a claim for unfair dismissal or suffering detriment/victimisation. You are victimised if you are treated badly because of the disclosure you have made – this could be anything from demoting you to your colleagues bullying you. What do I need to do to make a protected disclosure? The key to making a protected disclosure and being protected is that you follow the correct procedure – this primarily depends on the person to whom you are going to make the disclosure. Your employer or a third party You are encouraged to make the disclosure first and foremost to your employer. If, for example you work through an agency or as a contractor for a third party and wish to make a protected disclosure about the third party, you can make this to the third party and be protected, despite them not being your actual employer and you not telling your employer. The actual person to whom you make the disclosure is likely to depend on your company’s/the third party’s procedure. They may, for example, have a procedure authorising disclosures to a health and safety representative or a union official. If that is the case, this procedure should be followed. Regulatory Bodies & Government Departments Protected disclosures can also be made to the relevant regulatory body – for example, the Health and Safety Executive, the Serious Fraud Office, the Inland Revenue and the Environment Agency. To make such a disclosure you must believe the information you are disclosing is substantially true and concerns something within your area of responsibility. You do not have to have raised the matter with your employer first. If you are an employee in a Government appointed body you can make your disclosure to the relevant Government department. For example, if you work for an NHS Trust you can make the disclosure to the Department of Health. Legal advisor You can also make your disclosure through a legal advisor. The benefit of this is that you can take legal advice on what you are proposing to disclose to ensure you are protected. Furthermore, you can also instruct the lawyer to make the disclosure (they cannot and will not do so unless you tell them to). This is something we are highly experience in at YEB, so do not hesitate to contact us if you require advice on making a protected disclosure. The media You can disclose the information to the media and be protected provided you make the disclosure in good faith, believe the information is substantially true, you do not get paid for selling the story and one of the following applies:
- You reasonable believe that you will be subject to detriment by your employer if you make the disclosure to the employer or relevant regulatory body or Government Department;
- There is no relevant regulatory body or Government Department to whom disclosure can be made and you reasonably believe that if you went to your employer he would conceal or destroy information relevant to your disclosure; or
- You have previously made the same disclosure (it is important that it is the same disclosure) to you employer, relevant regulatory body or Government Department.
It is then required that in all the circumstances it was reasonable for you to make the disclosure. If you make a claim, when considering if it was reasonable the tribunal will consider, for example, who you made the disclosure to and the seriousness of the disclosure made. If you make the disclosure to the media and you have already told your employer or the relevant regulatory body about it, the tribunal will also consider what action the employer/regulatory body had taken or could have been expected to take. For example: if you told your employer of a relevant failing, but they went on to take steps to remedy the situation and you told the media anyway, the tribunal may not then consider your disclosure to the media reasonable. If the disclosure is exceptionally serious and you fear that prior disclosure to the employer may result in evidence being destroyed or you suffering reprisals, you can make the disclosure to the media without first making it to your employer. As a practical matter you should try to resolve any issues at work, for example relating to your performance, before you make the protected disclosure. This is because if you do disclose and are penalised, the employer may be tempted to say that you were mistreated not because of the disclosure but because of your alleged poor performance. What kind of claim can I make? In order to make a claim related to your making a protected disclosure, you must have either been dismissed or suffered detriment as a result of making the protected disclosure. You should keep good notes of anything you think is happening to you since you made your disclosure. Dismissal Dismissal for making a protected disclosure is automatically unfair. It does not matter how long you have worked for your employer (in most other dismissal cases, you have to have worked for your employer for two years to claim unfair dismissal). When considering if you have been unfairly dismissed, the tribunal will ask whether the disclosure was the sole or principal reason for the dismissal. This can be difficult for you, as the claimant, to show, particularly as the employer will normally claim there was some other reason for the dismissal. For more information about unfair dismissal see our unfair dismissal page. Suffering detrimentDetriment suffered as a result of blowing the whistle can be any detriment, but common examples include:
- Instigation of disciplinary proceedings
- Being denied a promotion;
- Being reassigned to different, often more menial, duties; or
- Verbal bullying.
For a detriment claim, the tribunal will consider whether the disclosure was a material factor in your employer’s decision to cause you to suffer detriment. This test naturally favours you as the claimant. What can I get? If you make a successful claim against your employer for unfair dismissal or detriment suffered as a result of your protected disclosure, the tribunal can give you the following:
- There is no cap on compensation for whistleblowing claims but it will be based on the loss you suffered (for example, the pay rise you missed on after being denied a promotion)
- Injury to Feelings: where you have suffered detriment (not dismissal cases), you can get damages for injury to feelings.
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