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Whistle Blowing

Whistle blowing at work

The Public Interest Disclosure Act 1998 (PIDA) came into force on 2nd July 1999 and protects workers who "whistle blow" about wrongdoing.    The Act is specific as to the circumstances in which it applies and provides for :-

  • the persons who may be protected;
  • the types of wrongdoing disclosure which may be protected; and
  • the circumstances in which such disclosures are protected.

Persons who may be protected

Most "workers" who ordinarily work in Great Britain are protected by the PIDA  from being subjected to a detriment (e.g. denial of promotion or some other opportunity) which the employer would otherwise have offered.    The PIDA covers not only employees but also contractors providing services, certain agency workers, home workers,  NHS Practitioners such as GPs, some dentists, pharmacists and opticians and certain trainees on vocational and work experience schemes.  

What is a protected disclosure?

Only specified types of disclosure qualify for protection ("qualifying disclosures").    A qualifying disclosure is one which in the reasonable belief of the worker tends to indicate that one or more of the following issues is happening, has happened, or is likely to happen in the future :-

  • a criminal offence;
  • a failure to comply with a legal obligation;
  • a miscarriage of justice;
  • a danger to the health or safety of any individual;
  • damage to the environment; or
  • deliberate covering up of information relating to any of the above five matters

The action indicating that a problem exists does not have to take place within the UK.

How is a protected disclosure made?

A qualifying disclosure will be protected if made :-

  • to the workers employer, either directly or by procedures provided by the employer for that purpose; or
  • to another person whom the worker reasonably believes to be solely or mainly responsible for the relevant failure.   

What further requirements exist?

In order to be a protected disclosure the worker must :-

  • where the disclosure is to the Employer make the disclosure in good faith and must reasonably suspect that the alleged offence or breach has happened, is happening or is likely to happen.
  • where the disclosure is to a "prescribed person"  e.g. Health and Safety Executive, in addition, honestly and reasonably believe that the information and any allegation in it is substantially true.
  • where the disclosure is to any other body, in addition to the requirements for disclosure to a prescribed person, be reasonable in all the circumstances and not made for personal gain.   In addition, one or more of the following further conditions must apply :-
    • that the worker reasonably believed that he/she would be subjected to a detriment by the employer if disclosure were made to the employer or to a prescribed person;
    • there was no prescribed person and the worker reasonably believed the evidence was likely to be destroyed or concealed if disclosed to the employer;
    • the worker had already disclosed the information to the employer or to a prescribed person;

Further, the disclosure to any other body must be reasonable and the following factors are likely to be considered relevant by an Employment Tribunal in determining the question of "reasonableness":

  • the identity of the person to whom the disclosure was made;
  • the seriousness of the concern raised;
  • whether the concern continues or is likely to be repeated;
  • whether the disclosure breaches a duty of confidentiality which the employer owes to a third party;
  • what action an employer might have taken had the disclosure been made directly to it;

What can a worker who makes a protected disclosure and suffers a detriment do?

A worker who has been subjected to a detriment by their employer for making a protected disclosure can complain to an employment tribunal.    There is no qualifying period of employment required to submit such a complaint.      An employee dismissed as a result of making a protected disclosure can make a complaint of unfair dismissal.  

A complaint to an employment tribunal should normally be made by the employee/worker within three months of the date of being subjected to the detriment or of being dismissed.      In most circumstances statutory disciplinary and grievance procedures should be followed and, as a consequence, the three month time limit may be extended.     There is no upper limit on the level of compensation an employment tribunal may award for breach of the whistle blowing legislation.  

How can a whistle blowing claim be best avoided?

It is vital that employers have a clear and considered whistle blowing policy and that managers are adequately trained to deal with potential protected disclosures in an appropriate fashion.      Operating such a procedure effectively may make it less likely that any disclosure by a worker to a prescribed person/other body  will be "reasonable".    

A whistle blowing policy should clarify what workers must do if they have a concern about wrongdoing in the work place and should provide clear details of whom to approach internally to discuss that concern.   Whilst statutory grievance procedures may be relevant to deal with many such concerns it is sensible to operate a distinct whistle blowing policy which should, therefore, be no less favourable to the worker than the statutory process.   

An employer establishing a whistle blowing policy should ensure their policy confirms that :-

  • the types of action protected by the PIDA are deemed to be unacceptable and that the employer is committed to ensuring that any concerns of that nature will be taken seriously and investigated;
  • employees who raise concerns reasonably and responsibly will not be penalized in any way; 
  • employees may request that their concerns be treated in confidence and that such a request will be respected;
  • all reported incidents will be investigated;
  • an employee may choose to be accompanied or represented by their union or a work colleague at any stage of the procedure;
  • the employer will not allow the individual raising the concern to be victimized for doing so;
  • the employer will treat victimization of whistle blowers as a serious matter that may lead to disciplinary action including dismissal;
  • no attempt will be made to conceal evidence of poor or unacceptable practice and disciplinary action will be taken against anyone destroying or concealing such evidence;
  • the employee is given a right of appeal if he/she remains dissatisfied with the outcome of the investigation because either
    • i)      they believe the procedures have not been followed properly, or
    • ii)     they are convinced that the decision is one which no reasonable person could have reached.

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