The formal term for whistleblowing is making a public disclosure. What this involves is an employee disclosing information about a serious wrong doing or malpractice at the firm he is working for. Whistleblowers are protected from being subjected to any detrimental treatment, victimisation or dismissal should they make a disclosure, under the Public Interest Disclosure Act 1998, which is the key piece of legislation regulating this topic.
The need for this protection came about when the courts saw a series of cases where, if an employee had disclosed information about, for example, an operational default in a business’s ship (Zeebrugge ferry disaster in March 1987), the consequences could have been avoided, but they didn’t in fear of backlash or ill treatment by the employer.
The Act provides which disclosures can and cannot be protected. It provides only six types of disclosure that can be protected. A public disclosure will be protected if it entails disclosing information about:
- A criminal offence being committed;
- A failure to comply with legal obligation;
- The occurrence of a miscarriage of justice;
- Environmental damage;
- Dangers to the health and safety of persons;
- In addition, any deliberate attempts by the employer to conceal any of the above activity.
Whistleblowing in the legal sense is complicated. For example, if an employee was to make a disclosure, it no longer needs to be made in good faith. This was a bar to proceedings in the past – the disclosure had to be made in good faith for a tribunal to hear a case of unfair dismissal/detriment because of the disclosure. However, a dismissal claim in relation to a disclosure made in bad faith (e.g. for malicious reasons) will now be heard at tribunal. The amount of compensation can be affected, however, if there is a lack of good faith.
To warrant protection, the disclosure needs to be made in the public interest i.e. not made for personal gain.
The NHS is currently busy dealing with the impacts of whistleblowing and are taking measures to ensure that their staff are not treated detrimentally for making a disclosure. The measures include the creation of guardian roles who will help whistleblowers in England.
Dismissal of an employee because they have made a protected disclosure is automatically unfair. This claim can be made from day 1 of employment and the reasonableness of the employer’s actions is not taken into consideration by the tribunal.
If you need any clarification on this issue then contact the Peninsula Advice Service on 0844 892 2772.