The Public Interest Disclosure Act 1998 protects workers and employees who report wrongdoing on the part of their employer or any third party against victimisation and dismissal.
People who make such reports are often referred to as “whistleblowers”. The whistleblowing legislation is a complex area of employment law. Claimants must apply and satisfy a number of legal tests laid out in statute in order to show that they have made a protected disclosure within the meaning of the legislation. Conversely, it is difficult for employers to identify when a protected disclosure is made, and how they should respond to it.
In summary, and simplifying to a great extent, Claimant’s must show:
- That they are a worker or employee protected by the legislation;
- That they made a ‘protected disclosure’, that is, a disclosure showing a relevant failure on the part of the employer or a third party. What constitutes a ‘failure’ is set out in the legislation; and
- That they made the disclosure in good faith to a responsible person. A list of those considered as ‘responsible persons’ is set out in the legislation.
The level of protection afforded to a whistleblower will depend on their employment status. Please read our page on employment status, which explains the difference between an employee, a worker and a self-employed contractor.
Workers who can satisfy the above tests have the right not to be victimised, that is, they have the right not to be subjected to any “less favourable treatment” because of the fact that they made a protected disclosure. If a worker can show that they were less favourably treated for this reason, they will succeed in a claim in the employment tribunal.
Employees, in addition to the right not to be victimised, also have the right not to be dismissed if the reason or main reason for the dismissal was because they had made a protected disclosure. If an employee is dismissed in these circumstances, they will succeed in a claim for automatic unfair dismissal. It is important to note that employees do not need to have been employed for 12 continuous months to be eligible to bring a claim, and that there is no limit to the amount of compensation that can be awarded to them.
What can an organisation do to protect itself from whistleblowing claims?
In view of the difficulties in identifying protected disclosures and the potential consequences of failing in its obligations under the legislation, it is a good idea for employers to implement a whistleblowing policy. Under the policy, employees would be required to make disclosures of wrongdoing in a prescribed way to a specific person, who should be appropriately trained, making the whole process more manageable for the employer.