Whistleblowing

At work, we assume that our colleagues will follow the rules and behave appropriately; both on a personal and legal level. While this is generally the case, what do you do if one of them behaves improperly, or you think they have? Whistleblowing is often misunderstood by those who assert it or those that have to deal with it. Here, we detail what whistleblowing is, including what a qualifying disclosure is and how to protect that disclosure.

What is whistleblowing?

Whistleblowing is when you report an instance of wrongdoing in the workplace; this could include financial irregularities, unsafe working conditions or environmental damage. Provided certain criteria are met, there are protections afforded to you if you decide to blow the whistle.

There are only certain complaints you can make that are protected by law; these relate to:

• A criminal offence which has been, or is likely to be committed;
• A failure to comply with a legal obligation;
• A miscarriage of justice which has occurred, is occurring or is likely to occur;
• The health and safety of an individual has been, or is likely to be endangered;
• The environment has been, or is likely to be damaged; or
• Information relating to any of the above is being deliberately concealed.

If you make a disclosure, provided it is an issue that could affect others, and hence has a public interest element rather than a personal grievance, you will be protected by the Employment Rights Act 1996. 

This means that it is against the law for your employer to:

• treat you detrimentally; or
• dismiss you because you have raised concerns in the public interest that relate to the issues above.

An example of whistleblowing

You work for a builder and one day you are at a site and a sub contractor removes asbestos without protection and fly-tips in a farmer’s gate on the way to his work-base. You email the Operations Director with your concerns and give the details to him. Three days later you are made redundant without warning and any process being followed. It’s likely that the decision is connected with the whistleblowing, which would make the dismissal unfair.

In order for you to be protected, the disclosure of information made needs to be a ‘qualifying disclosure’.

What is a ‘qualifying disclosure’?

To make a ‘qualifying’ disclosure, it must be communicated and be evidenced. You can make disclosures verbally or in writing, but it is better that you make it in writing to avoid any dispute arising over the content and the fact the disclosure had been made. You must also have a reasonable belief that the wrongdoing has occurred or is likely to occur at some point. It is important to note that the actual assertion need not actually be true, but that you reasonably believed it to be so.

Your disclosure must be in the public interest, meaning that it could affect other peoples’ lives and wellbeing. It is unlikely that personal grievances such as bullying and harassment will meet the criteria of a qualifying disclosure, and so it may not be covered by laws that protect whistleblowers. If your issue is of a more personal nature, it’s best to report it through your employer’s grievance policies.

If your disclosure meets the above requirements, then it will count as a qualifying disclosure for the purposes of whistleblowing legislation.

How do I make my disclosure protected?

In order for your disclosure to become protected it has to be made to one of the following:

• your employer (usually at a managerial level);
• the person responsible for the wrongdoing;
• legal advisers;
• Government ministers; or
• persons prescribed by an order of the Secretary of State

The idea of whistleblowing in the face of serious wrong-doing is a daunting one. It may need courage to come forward and be counted, but the law is there to protect you if you choose to make a disclosure.

It is important that you contact an experienced solicitor before making a disclosure to ascertain what your options are. To discuss how we can support you, contact us on 023 8063 9311 or email employment@warnergoodman.co.uk.