Legal guide and advice on whistleblowing

The law safeguards whistle-blowers when they have been dismissed or have suffered detrimental treatment by their employers following a protected disclosure. There may also be a whistleblowing policy or procedure within the employment contract.

What is a protected disclosure?

Employers will be liable where an employee suffers a detriment because they have made a protected disclosure. Employers will have a defence, in certain circumstances, if they took all reasonable steps to prevent the detriment.

The information disclosed must be based on a reasonable belief that the employee's concern falls within one of the relevant categories.  The reasonable belief is that one of the following has happened, is happening or is likely to happen:

• danger to the health and safety of an individual;
• breach of a legal duty;
• a criminal offence;
• miscarriage of justice;
• environmental damage; or
• the deliberate hiding of information about any of the above.

To be a qualifying disclosure, the employee must reasonably believe that the disclosure is ‘in the public interest’.  The disclosure can still qualify if it is partially made in self-interest, providing the employee reasonably believes that it was also in the public interest.

The primary method of whistleblowing should be a disclosure to your employer. A qualifying disclosure to the employer can amount to a protected disclosure.

It will be automatically unfair if an employee is dismissed because they have made a protected disclosure. This protection can also apply where the reason for dismissal is connected to a protected disclosure in a redundancy situation. There is no qualifying period and no cap on compensation.

It is also unlawful for employers to subject any employee to a detriment because they have made a protected disclosure.  A detriment includes threats, disciplinary action, loss of work or pay, or damage to career prospects.

Disclosure to a prescribed person

Some external disclosures are protected in certain circumstances to prescribed persons. There is a list of ‘prescribed persons’ to whom employees can make disclosures. There is no need to alert the employer before making such a disclosure, as long as the employee believes that the information is substantially true and that the matter falls within the prescribed person's area of responsibility.

The employee will only be protected if they genuinely believed the disclosure to be true information and the employee is not acting for their own advantage.

Unless the matter is “exceptionally serious", disclosures should only be made to the employer or a prescribed person.

Where an employee has not first raised the matter with their employer, the circumstances and reasons for making the external disclosure will be particularly important in determining whether the disclosure is protected.

Disclosure process

The correct approach for an employee will be to :-

• Raise concerns internally at first - genuine concerns about dangerous or illegal practices should usually be raised internally in the first instance.  Making a disclosure is not the same as raising a grievance.  Disclosures are protected in a way that grievances are not.  However, there are similarities. In both cases, the grounds for the concern should be clearly articulated.
• External disclosure - you are allowed to give information to a statutory regulator or other ‘prescribed person’ without telling the employer.  External disclosure without having disclosed internally first may be more difficult to justify.  Disclosure to the media can only be protected in limited circumstances and if there was no monetary consideration received.

Financial settlement after whistleblowing

Whistleblowing situations can give rise to financial settlements. Money is rarely, if ever, the reason employees take the very difficult decision to blow the whistle. However, there can be significant career repercussions of whistleblowing and so employees often need to consider their financial position and whether a settlement may be appropriate.