Whistleblowing has been a hot topic for employers in recent years. In our latest blog post, we set out a reminder of the key points and highlight some recent developments.
What is whistleblowing?
- Since 1999 the Public Interest Disclosure Act 1998 (PIDA), which introduced sections 43A to 43L and 103A to the Employment Rights Act 1996 (ERA), has afforded whistleblower protection to employees and workers against victimisation and dismissal following a disclosure of employer wrongdoing.
- A disclosure may take place after employment has ended. In Onyango v Adrian Berkeley T/A Berkeley Solicitors the appellant, a solicitor, sought to rely upon disclosures he had made after the termination of his employment, which resulted in him being investigated by the Solicitors Regulation Authority. Since detriment may arise post-termination, the EAT saw no reason to limit a disclosure to the duration of the employment.
- There is no minimum period of service before a claimant can bring a whistleblowing claim, and there is no financial cap on compensation that can be awarded. If the claimant is an employee and the detriment is dismissal, the claimant will need to comply with the usual unfair dismissal time limits. A detriment claim must be brought within three months of the act or failure relied upon, subject to any extension as a result of the ACAS pre-claim conciliation process.
- A whistleblower will qualify for protection if they have made a qualifying disclosure that is also a protected disclosure.
What is a qualifying disclosure?
- The disclosure must involve information that ‘conveys facts’, rather than simply raising a concern or allegation. This can occur orally or in writing, but a written disclosure is obviously less likely to be contested.
- The information must relate to one of six types of wrongdoing by the employer: criminal offence, breach of any legal obligation, miscarriage of justice, danger to health and safety of any individual, damage to the environment, and the deliberate concealment of information about any of these.
- The employee or worker must hold a ‘reasonable belief’ that the information tends to show that the wrongdoing has occurred, and that the disclosure is in the public interest. Importantly, a belief of wrongdoing can be reasonable even if it is mistaken. Up until 25 June 2013, a qualifying disclosure had to be made ‘in good faith’. This requirement was removed but good faith is still relevant to the question of compensation.
What is a protected disclosure?
- A qualifying disclosure will be a ‘protected disclosure’ when it is made to the employee or worker’s employer. Disclosures made to third parties will only be protected in certain, more limited, circumstances, and may be subject to additional requirements. For example, disclosures made to ‘prescribed persons’ such as the Financial Conduct Authority or Prudential Regulation Authority will only be protected if the worker ‘reasonably believes’ that the information disclosed is ‘substantially true’.
- In Chesterton Global Ltd (t/a Chestertons) and another v Nurmohamed, the EAT found that a disclosure could be in the ‘public interest’ without necessarily relating to people outside of the employer. Here, there was an allegation of accounting irregularities affecting 100 branch managers.
- In Timis and Sage v Osipov the Court of Appeal decided that two non-executive directors, instrumental in the dismissal of the company’s CEO, could be held personally liable for losses flowing from the dismissal (in addition to the employer).
- In Royal Mail Ltd v Jhuti a protected disclosure was made to the Claimant’s line manager but was unknown to the individual who made the decision to dismiss the Claimant. The Court of Appeal decided that the employer should only be attributed with the knowledge or state of mind of the decision-maker and so the claim failed. It has been appealed to the Supreme Court, where it will be heard later this year.
- In Foreign and Commonwealth Office and others v Bamieh it was determined that a whistleblowing detriment claim brought by a British national against an overseas co-worker, could not be brought in a British employment tribunal as the relationship between the relevant co-workers did not have a sufficient British connection.