Whistleblowers’ rights

Under the Employment Rights Act it is automatically unfair to dismiss an employee who makes a disclosure in the public interest – the official description of whistleblowing. Workers cannot claim unfair dismissal but they can claim detrimental treatment; in other words, all workers have some form of protection. The protection also applies if the worker is based abroad.

The protection only applies if the employee or worker makes a ‘qualifying disclosure’ under the Public Interest Disclosure Act. To become a qualifying disclosure the whistleblower must have ‘reasonable belief’ and the report must meet certain requirements:

•appropriate subject matter, e.g.:

• that someone’s health or safety is in danger

• that the environment is damaged

• a criminal offence has been or is to be committed

• a breach of civil law has taken place

• that someone is covering up wrong doing

• it must be in the public interest

• a disclosure can be made to a prescribed body or person (a list is available on gov.uk but only if the whistleblower feels their employer would cover it up, subject them to a detriment or they have already made a disclosure which hasn’t been acted upon

• the whistleblower does not break the law in making the disclosure, e.g. the Official Secrets Act for public sector employees.

The whistleblower does not have to show that the act has occurred or will occur – reasonable belief is sufficient. However, if the disclosure is not protected then the employee is at the mercy of their employer. A disclosure to someone outside the prescribed list, e.g. the press, is likely to breach the employee’s duty of confidentiality.

In early 2015 the whistleblowing charity Public Concern at Work published an in-depth study of tribunal cases that featured a whistleblowing element between 2011 and 2013. It found:

• 53% of claimants were not represented by a lawyer

• claimants were four times more likely to have costs awarded against them than respondents

• there has been a 20% drop in cases since the introduction of tribunal fees

• only 7% of claimants successfully gained interim relief

• £7.3 million in damages were awarded in whistleblowing claims.

The charity’s report into 2013 cases, published in November 2014, revealed that there had been a 17% rise in whistleblowing cases across the UK – but 63% of cases raised were denied or ignored. A third of staff who raised concerns were dismissed and a further 22% were victimised or disciplined after raising concerns. Only 10% of concerns were addressed and only 6% of staff said things improved.