What is a Protected Disclosure?

A protected disclosure is one that qualifies to gain protection under PIDA. When eligible individuals, i.e., workers, disclose certain wrongdoing, they can gain protection from unfair dismissal or “detriment”.

“Detriment” occurs when a person is treated worse, or their situation worsens after making their disclosure — for instance if an individual informs their employer of fraudulent activities and then faces harassment.

However, to gain this protection, specific eligibility criteria must be met.

What “Information” Must You Disclose to be a Protected Whistleblower?

To gain protection as a whistleblower, individuals must provide information that is in the public interest, about one or more of the following:

• An illegal act or crime
• A breach of a legal duty
• A miscarriage of justice
• Conduct that endangers another
• Conduct that damages the environment
• An attempt to deliberately conceal any of the above

While the disclosure doesn’t have to be completely accurate, there must be a reasonable belief that wrongdoing has occurred, will occur, or is currently occurring.

What Does “in the Public Interest” Mean?

For a disclosure to be protected, it must benefit the public or be “in the public interest”. This means the wrongdoing cannot simply be a personal grievance but rather affect others, such as colleagues. While there’s no specific definition for “public interest” under UK law, the courts have deemed four key factors relevant:

1. The number of people affected – The more people affected, the more likely the disclosure will be in the public interest.
2. The nature and extent of the interests affected – Serious wrongdoing that impacts significant interests is more likely to satisfy the criteria.
3. The nature of the alleged wrongdoing – Deliberate acts are more likely to be considered in the public interest than unintentional ones.
4. The identity of the alleged wrongdoer – The larger and more influential the employer, the more likely wrongdoing will be considered in the public interest.

What is “Reasonable Belief”?

When an individual blows the whistle on wrongdoing – while they may not be right about the misconduct – they must have “reasonable belief”. This means that, given the facts known to them at that time, a reasonable person in their position would believe they were blowing the whistle on wrongdoing that’s in the public interest.

Who’s Protected Under Whistleblowing Legislation?

In the UK, most individuals who make a qualifying disclosure are protected. This includes workers, employees, NHS practitioners, and apprentices. Whistleblowing protection begins at the start of employment and continues even after employment ends, provided the disclosure relates to a matter that occurred during employment and meets the required criteria.

However, some individuals aren’t protected under UK whistleblowing law, including:

• Truly self-employed individuals
• Volunteers without a binding employment contract
• Non-executive directors
• Armed forces personnel
• Solicitors or barristers aware of matters covered by professional privilege
• Crown employees dealing with national security matters, such as those working for MI6

How Should You Make a Protected Disclosure?

The first port of call for individuals looking to make a protected disclosure is to speak with their employer. That is, unless they believe their employer is involved in the wrongdoing, will attempt to cover it up, will subject them to a detriment, or hasn’t acted appropriately after previously being informed.

In the above situations, the individual should raise the matter with a “prescribed person” instead. Prescribed persons are typically external organisations or regulatory bodies designated to receive whistleblowing disclosures in specific sectors.

Either way, once the individual has disclosed something, they should keep written evidence, noting what was said, when it was said and to whom. This documentation can serve as important evidence if any issues arise later.

What Happens if You’re Subjected to a Detriment Because You’ve Made a Protected Disclosure?

If appropriate, an individual could begin by complaining to their employer about the treatment they experienced. Should the matter require a more formal approach, they could raise a grievance instead. If the issue can be dealt with at this stage, it will benefit all involved, as the stresses and costs of court action would be avoided. Unfortunately, not all issues can be resolved internally.

If an individual faces such a scenario, they should consider going through ACAS early conciliation. Not only is this required before an employment tribunal claim can be brought, but it may help find a solution. However, if it doesn’t, they could initiate tribunal proceedings, as long as they satisfy specific eligibility criteria and adhere to the time limits.

Minimum Length of Service

Usually, to bring a regular unfair dismissal claim, individuals must be classed as employees and have two years of continuous service with their employer. However, this requirement doesn’t apply to claims involving whistleblowing.

If an individual is dismissed because they made a protected disclosure, the dismissal would be “automatically unfair”. In such cases, the two-year qualifying service requirement is waived. Additionally, if the individual claims detriment unrelated to dismissal, there’s no minimum length of service requirement.

Should My Employer Have a Whistleblowing Policy?

Although employers have no legal requirement to have a whistleblowing policy, it’s highly recommended. A comprehensive policy informs employees about their rights and the protections available under the law. It also demonstrates the employer’s commitment to transparency, ethical behaviour, and addressing wrongdoing.

What Happens if the Case Goes to an Employment Tribunal?

If a whistleblower cannot resolve their grievance internally or through ACAS early conciliation, they may take their case to an Employment Tribunal. To proceed, they must adhere to strict time limits:

• For dismissal claims, the claim must be filed within three months less one day from the effective date of termination.
• For other detriment claims, the claim must be filed within three months less one day from the date of the act or omission that caused the detriment. If the issue occurs over a period, the time limit starts from the last day of that period.

During proceedings, the employer is responsible for proving the detriment or dismissal wasn’t caused by the employee’s protected disclosure. They must show that the action was taken for another reason, such as the employee’s performance or conduct.

The standards of proof differ for detriment and dismissal claims:

• In detriment claims, the protected disclosure must have had more than a trivial influence on the adverse actions.
• In dismissal claims, the protected disclosure must have been the principal reason for the dismissal.

If the employee successfully demonstrates that they made a qualifying disclosure, had a reasonable belief in making it, followed the proper procedure, and suffered a detriment or dismissal, they could be awarded compensation.

This compensation is uncapped; however, if the tribunal finds that the disclosure was made with dishonest motives, it could be reduced by up to 25%.

Whistleblowing and Protected Conversations

In regular claims, employers may use “protected conversations” to ensure that settlement negotiations cannot be used as evidence in court. However, this protection doesn’t apply to whistleblowing claims. In such cases, only “without prejudice” discussions can safeguard the confidentiality of negotiations.

That said, ‘without prejudice’ conversations are only valid if there’s an existing dispute between the parties. Therefore, if an employer offers a settlement without a genuine dispute, this correspondence will likely be admissible in court.

Evidence Needed to Negotiate a Whistleblowing Settlement

To succeed in settlement negotiations as a whistleblower, evidence is essential. The power in negotiations is often tipped in the employer’s favour, but solid evidence can help balance the scales.

With much of today’s correspondence being sent digitally, it’s easier to collate documents proving employer wrongdoing. Those affected should keep track of their emails or any other electronic communications that could support their case. If there are any witnesses to the conduct in question, it’s also worth seeing if they would be willing to provide their contact details – should their statement later be required.

Dealing with the Media

In most cases, going to the media will cause individuals to lose their whistleblowing protections under the PIDA. As such, if they face dismissal or detriment as a consequence, they would generally be unable to seek legal recourse.

Despite this, exceptional circumstances exist where rights relating to protected disclosures can be retained, even after going to the press. To qualify for protection in such cases, the whistleblower must demonstrate that:

• They had a reasonable belief that the information disclosed was substantially true;
• The disclosure was not made for personal gain;
• Making the disclosure was reasonable, considering all the circumstances and
  • A disclosure was first made to their employer or a prescribed person, but no appropriate action was taken or,
  • No prior disclosure was made because the wrongdoing was exceptionally serious or, there was a reasonable belief that the employer would conceal evidence or subject the whistleblower to detriment.

It’s important to note, however, that while there are exceptional cases where individuals can go to the media, the risks of doing so must be carefully considered. For instance:

• Defamation risks: If the information disclosed turns out to be incorrect, the whistleblower could face defamation claims.
• Breach of confidentiality: Disclosing information protected under a confidentiality agreement could result in legal action (this, however, doesn’t apply to reports specifically about wrongdoing that qualifies as a protected disclosure).
• Reputational impact: Media attention could significantly affect the whistleblower’s personal and professional reputation.

Ultimately, when considering making a protected disclosure, it’s wise first to report concerns to one’s employer or a prescribed person and seek legal advice. If media involvement is deemed necessary, consulting a legal specialist can help ensure the process is managed appropriately and, where possible, maintain the whistleblower’s anonymity.

Gagging Clauses

Ordinarily, confidentiality agreements, or “gagging clauses”, prevent individuals from disclosing specific information publicly once they’ve signed a settlement agreement. Should the individual break the clause, the employer could pursue legal action against them.

However, the same doesn’t apply to whistleblowing claims. If an individual were to report wrongdoing after signing an agreement, the employer would have no legal basis to sue. As such, when a whistleblower signs an agreement to leave quietly, there must be a level of trust between them and their employer.

Negotiating in Whistleblowing Cases

When issues arise after making a protected disclosure, individuals can seek an internal remedy before pursuing ACAS early conciliation or an employment tribunal claim. However, making a claim can be stressful, time-consuming, and costly for both parties. Therefore, many prefer to negotiate a settlement outside of court.

Successful negotiation often involves presenting strong evidence of the disclosure and its consequences and exploring alternative solutions that address the concerns raised. During this process, both employees and employers can work toward a mutually acceptable settlement.

Given the complexities of whistleblowing law, though, seeking specialist advice is highly recommended. A legal expert can ensure compliance with relevant legislation and provide guidance on securing an optimal outcome.

Compensation for Whistleblowers

If a whistleblower succeeds in their claim, they may be entitled to compensation for financial loss and injury to feelings. The amount awarded will depend on various factors, including length of service, the disclosure’s seriousness, the detriment’s impact, and the financial loss suffered.

• Compensation for financial loss is typically based on the earnings lost in the past and future after facing a detriment or dismissal. This can include lost wages, bonuses, and other benefits.
• Awards for injury to feelings address the emotional distress suffered due to the treatment experienced following a disclosure. Such compensation is typically determined based on the Vento bands, which range from approximately £1,200 to £58,700.

Although less common, whistleblowers unfairly dismissed may also be entitled to reinstatement or re-engagement. The tribunal will consider the circumstances of the case, including the nature of the disclosure and the employer’s actions.

Examples of Whistleblowing

Whistleblowing covers a wide range of workplace issues in the public interest. Common examples include:

• Health and safety violations, such as operating vehicles against DVSA requirements
• Financial impropriety, like unauthorised payments from petty cash
• Criminal offences, including bribery attempts

For any further questions or specialist legal advice for your case, please contact Redmans Solicitors now. To get in touch, simply:

• Phone us on 020 3397 3603
• Request a callback via our online form