Whistleblower Protection & Claims Solicitors
Our employment law team have considerable experience in advising employees on the law relating to whistleblowing, including dismissal and detrimental treatment. The law is complex, and therefore advice should be sought from specialist employment solicitors in this area.
IBB Solicitor’s employment law team can provide clear, practical guidance on your rights relating to whistleblowing. Our team includes some of the region’s top ranked employment lawyers with decades of experience representing employees of all levels.
What protection do you get if you blow the whistle?
The Public Interest Disclosure Act 1998 (PIDA) provides whistleblowers with two levels of protection:
- dismissal if you are an employee or employee shareholder, which will be automatically unfair if the reason, or principal reason, for the dismissal is that you have made a protected disclosure(section 103A of the Employment Rights Act 1996 (ERA))
- being subjected to a detriment if you are an employee, employee shareholder or worker because you have made a protected disclosure (section 47B of the ERA).
The definition of a worker under PIDA includes other types of individuals:
- homeworkers, whether or not the work is to be done by them personally
- non-employees undergoing training or work experience as part of a training course, otherwise than at an educational establishment
- self-employed doctors, dentists, ophthalmologists and pharmacists in the National Health Service
- student nurses and student midwives
- agency workers
- police officers
- in some cases, partners in limited liability partnership.
Unlike ordinary unfair dismissal claims, there is no cap on compensation in whistleblowing dismissal claims as they are automatically unfair. Also, you do not need 2 years continuous service to pursue such a claim.
How do you receive whistleblowing protection?
You will only receive protection as a whistleblower if you have made a qualifying disclosure, which means:
- a disclosure of information, which includes an allegation that is made either in writing or verbally
- the subject matter of the disclosurerelates to one of the 6 types of failure: (a) criminal offences; (b) breach of any legal obligation; (c) miscarriages of justice; (d) danger to the health and safety of any individual; (e) damage to the environment; and (f) the deliberate concealing of information about any of the above
- a reasonable belief in the wrongdoing not matter that the belief subsequently turns out to be wrong
- the disclosure must be in the public interestbased on your subjective belief, which could be based on: (a) the numbers in the group whose interests the disclosure served; (b) the nature of the interests affected and the extent to which they are affected by the wrongdoing disclosed; (c) the nature of the alleged wrongdoing disclosed; and (d) the identity of the alleged wrongdoer.
The qualifying disclosure can be made:
- during employment with your employer
- during employment with your previous employer
- after employment with your employer has terminated.
What is a protected disclosure?
A qualify disclosure will amount to a protected disclosure only if it has been disclosed to a specific category of person who is:
- your employer (e.g. the person specific in a whistleblowing policy)
- a responsible persononly where you reasonably believe the malpractice relates solely or mainly to that person and not your employer
- a legal adviserin the course of obtaining legal advice
- a Government Minister (e.g. an NHS body, a utility regulator or a statutory tribunal)
- a prescribed person (e.g. the Health and Safety Executive)
- a person who is not covered by the list above provided certain conditions are met: (a) you must reasonably believe that the information disclosed, and any allegation contained in it, are substantially true; (b) you must not make the disclosure for the purposes of personal gain; (c) it must be reasonable for you to make the disclosure; and (d) you must have:
- previously disclosed substantially the same information to your employer or to a prescribed person
- reasonably believe, at the time of the disclosure, that you will be subjected to a detriment by their employer if they make disclosure to your employer or a prescribed person
- reasonably believe (where there is no prescribed person) that material evidence will be concealed or destroyed if disclosure is made to your employer.
There are exceptions which are:
- the disclosure is of legally privilegedinformation by a person (such as a lawyer) to whom the information has been disclosed in the course of obtaining legal advice it is not a protected disclosure
- where making a disclosure you commit a crimein doing so
- parliamentary staff are protected against dismissal but not detriment, which is the same for members of the armed forces.
What if you suffer a detriment for whistleblowing?
Detriment means treatment of a kind that a reasonable person would or might take the view that in all the circumstances you have been disadvantaged. An unjustified sense of grievance cannot amount to a detriment. It is not necessary to demonstrate some physical or economic consequence.
The Whistleblowing Commission Code of Practice provides examples of disadvantages that could amount to a detriment:
- failure to promote
- denial of training
- closer monitoring
- blocking access to resources
- unrequested reassignment or relocation
- disciplinary sanction
- bullying or harassment
- failure to provide an appropriate reference
- failure to investigate a subsequent concern.
If you are an employee, employee shareholder or worker, you have the right not to be subjected to any detriment on the ground that you have made a protected disclosure.
If the detriment takes the form of a dismissal, you cannot bring a detriment claim against your employer but can instead bring an employment tribunal claim for automatic unfair dismissal. However, you may:
- still have a separate claim against your employer for detriment up to the date of dismissal
- have a claim for detriment against any colleague involved in the decision to dismiss you (alongside the unfair dismissal claim against your employer), and compensation for such a claim might include post-dismissal losses.
If you are not an employee, you can bring a detriment claim based on the termination of your contract, and in such a case any compensation must not be more than an employment tribunal would have awarded if the claim had been one of unfair dismissal.
If you are subjected to a detriment by your former employer (e.g. a bad reference) after termination of your employment, you can still bring an employment tribunal claim for detriment.
A worker or agent of an employer can be personally liable if they victimise whistleblowers and be a party in an employment tribunal claim.
The appropriate test requires an employment tribunal to be satisfied that the detriment was on the ground that you have made a protected disclosure. The detriment must be more than just related to the disclosure. There must be a causative link between the protected disclosure and the reason for the treatment, in the sense of the disclosure being the real or core reason for the treatment.
What if you are dismissed for whistleblowing?
If you are an employee or employee shareholder, you shall be regarded as automatically unfairly dismissed if the reason, or principal reason, for the dismissal is that you have made a protected disclosure. There is no requirement that the protected disclosure concerned was made to your employer carrying out the dismissal.
The appropriate test requires an employment tribunal to be satisfied that the whistleblowing caused the dismissal, which creates two questions:
- was the making of a disclosure the reason (or principal reason) for the dismissal?
- was the disclosure in question a protected disclosure within the meaning of the ERA?
If the answer to both questions is yes, you will have been unfairly dismissed.
It is for you to show that you have made a protected disclosure and that you have been dismissed and are, in other respects, entitled to bring an unfair dismissal claim.
If you do not have the necessary qualifying service necessary to bring a claim for ordinary unfair dismissal, the burden is on you to show the reason for dismissal and where you do have the requisite qualifying service, the burden remains on your employer.
Is there are any special provisions relating to whistleblowing?
In a whistleblowing unfair dismissal case, an employment tribunal can grant you interim relief by making an order for the continuation of your employment pending final determination of the case (sections 128 and 129 of the ERA).
Applications for interim relief must be made before the end of the 7th day following the effective date of termination. If you were dismissed with notice, you can also make an application during the notice period.
An employment tribunal must hold a hearing as soon as practicable and must give the employer at least 7 days’ notice of the date and time. Hearings will rarely be postponed, and only if the tribunal decides there are special circumstances. Hearings are summary in nature and in most cases the tribunal will rely on the pleadings, written submissions, documents and any witness statements.
Interim relief can only be granted if the tribunal thinks that the claimant is likely to establish at a final hearing that the protected disclosure was the reason (or principal reason) for dismissal. This means that it must be likely that a tribunal will find that:
- you have made a disclosure to his employer
- you believe that the disclosure tended to show one or more of the 6 types of failure
- your belief was reasonable
- you believe the disclosure to be in the public interest
- the disclosure was the principal reasonfor the dismissal.
If granted, the tribunal will ask your employer if it is willing to reinstate you or re-engage you on terms that are no less favourable and are acceptable to you. If so, the tribunal will make an order to this effect.
If your employer refuses to reinstate or re-engage you, or fails to attend the hearing, an order for continuation of the employment contract will be granted. This is not the same as reinstatement or re-engagement: it simply gives you the right to continue to receive your salary and benefits, and to accrue continuity of service, pending the final hearing. You do not have to do any work. However, where your employer offers re-engagement on different terms and if you unreasonably refuse the new terms, the tribunal will make no order for continuation.
What remedies are available?
If you are an employee, employee shareholder or worker who believes your employer (or another worker) has discriminated against you then you can bring an employment tribunal claim.
Employment tribunals can award unlimited compensation, which can include an award for injury to feeling and financial losses because of whistleblowing.
How long do you have to bring an employment tribunal claim?
An employment tribunal claim under the ERA relating to whistleblowing must be received by the tribunal within 3 months of the complaining act (i.e. 3 months less 1 day). This can be the last act in a series of detrimental acts over a period of time. The time limit is a strict one and will only be extended in certain circumstances.
The time limit can be extended during Acas early conciliation, which must be started before the time limit has expired.
Please see our page Acas early conciliation.
Frequently asked questions
Please see our blog 5 things you need to know about whistleblowing.
Our expertise with whistleblowing
Over the years, we have built an exceptional track record of success in achieving favourable outcomes for our clients, including in relation to complex, high value and contentious employment tribunal claims.
IBB Solicitors is one of the South East’s top ranked legal firms for employment law, having secured Tier 1 ranking in the highly respected Legal 500 client guide. Marc Jones from our employment team has been individually recognised by the Legal 500 as a leading individual in the field of employment law.
Having specialised in employment law for over 20 years, Marc advises and represents individuals from a range of sectors and organisations. He has successfully acted for individuals against large multinationals, small to medium-sized enterprises, public sector bodies and charities.
Contact our specialist whistleblowing solicitors today
Have you suffered detrimental treatment at work or been dismissed because you have blown the whistle? At IBB Solicitors, our employment law specialists have a wealth of experience in whistleblowing cases.
Contact our specialist whistleblowing solicitors on 03456 381381 or email your details to firstname.lastname@example.org and we will get back to you promptly.