Whistleblowers are protected provided that:
- They are ‘workers’. This has a wider meaning than ‘employee’. It includes agency workers, those in training and can also include self-employed persons.
- They believe that offending behaviour has happened in the past, is presently happening or suspect that it will happen in the future.
- The information falls into a certain, defined category and amounts to a “qualifying disclosure”
- The information is disclosed to the correct authority or person. If the disclosure is made to an inappropriate person it will not be classed as “a protected disclosure"
The categories of disclosure which are protected are disclosures relating to:
- The commission of criminal offences
- Failure to comply with health and safety legislation
- Environmental damage
- Miscarriages of justice
- Failure to comply with a legal obligation (e.g. Money Laundering regulations)
- A deliberate attempt to cover up any of the above.
For the disclosure to be protected, it must be made:
- Honestly. The whistleblower must reasonably believe that the information they are disclosing is substantially true.
- To the right person. The whistleblower must reasonably believe that they are disclosing the information to the right person, known as the ‘prescribed person’.
- A whistleblower should, in the first instance, make the disclosure to their employer. If this is not possible, they should seek out the correct ‘prescribed person’. It may be necessary to take legal advice to find out who the correct person is.
- If an employee suffers as a result of a protected disclosure, e.g. they are dismissed, disciplined, demoted, victimised or otherwise treated unfavourably, then they may be able to make a claim against their employer.
As from June 2013, an employer may also be vicariously liable where any of its employees treat a whistleblower less favourably because they have made a disclosure, even if the employer is not directly responsible for that less favourable treatment.
To succeed in such a claim, the employment tribunal must be persuaded that the whistleblower has complied with all of the requirements as are set out above regarding the nature of the disclosure, ensuring it is made in good faith and ensuring that it is made to the right person.
