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What Protection Is Available For Whistleblowers?

In early January 2023, a whistleblowing NHS nurse who had worked for the health service for 44 years was awarded nearly £500,000 for being dismissed after claiming that high workloads had led to a patient’s death. The nurse made 13 disclosures stating staff were overloaded with work and following her last warning to her superiors, she returned from annual leave only to be suspended and investigated for “bullying and harassment”, and then dismissed for gross misconduct. This recent case illustrates the risks associated with whistleblowing and the concerns around the lack of statutory protection for those who speak up against wrongdoing in their workplace.

The Protection for Whistleblowing Bill (HL) 2022-23 had its second reading in the House of Lords in December 2022. If passed, the Bill will introduce an independent Office of the Whistleblower which will set minimum standards for whistleblower policies. The Bill would also create offences relating to the treatment of whistleblowers and the handling of whistleblowing cases, in addition to repealing the current main whistleblower legislation, namely the Public Interest Disclosure Act 1998 (PIDA).

If you have blown the whistle at work or are considering doing so, you must understand the protections under PIDA to ensure you safeguard your best interests, especially given that an All Party Parliamentary Group for Whistleblowing stated in 2019 that the current law is “now no longer fit for purpose as it is too complicated and does not protect all citizens”.

What is the Public Interest Disclosure Act 1998?

PIDA inserted sections43A to 43L, section 47B and section 103A into the Employment Rights Act 1996 (ERA 1996), protecting workers reporting malpractices by their employers or third parties against victimisation or dismissal. The legislation does not impose a duty on an employer to create a whistleblowing policy or encourage whistleblowers to come forward. It merely prohibits employers from subjecting whistleblowers to any detriment, including dismissal, if they make a protected qualifying disclosure.

What is a protected qualifying disclosure?

A disclosure qualifies for protection if it concerns one of the following wrongdoings listed in section 43B (1) (a-f) of the ERA 1996:

  • a criminal offence has been committed, is being committed or is likely to be committed,
  • someone has failed, is failing or is likely to fail to comply with any legal obligation to which they are subject,
  • a miscarriage of justice has occurred, is occurring or is likely to occur,
  • the health or safety of any person has been, is being or is likely to be endangered,
  • the environment has been, is being or is likely to be damaged, or
  • information showing evidence of any of the above has been, is being or is likely to be deliberately concealed.

In Williams v Brown UKEAT/0044/19, His Honour Judge Auerbach provided useful guidelines for determining what amounts to a qualifying disclosure:

“9. It is worth restating, as the authorities have done many times, that this definition breaks down into a number of elements. First, there must be a disclosure of information. Secondly, the worker must believe that the disclosure is made in the public interest. Thirdly, if the worker does hold such a belief, it must be reasonably held. Fourthly, the worker must believe that the disclosure tends to show one or more of the matters listed in sub-paragraphs (a) to (f). Fifthly, if the worker does hold such a belief, it must be reasonably held.”

In addition to the above, only disclosures made to the following will be protected:

  • your employer
  • the person responsible for the relevant failure
  • a legal adviser
  • Government ministers
  • a person prescribed by an order made by the Secretary of State
  • a person who is not covered by the list above, provided certain conditions are met with the conditions being varied in exceptionally serious cases (this covers disclosures made to a reporter or media outlet)

Case law examples of exceptionally serious cases include the physical abuse of an elderly person in a care home (Morling v Hilton Community Services Ltd ET/3401943/15) and asbestos at a National Trust site (Collins v The National Trust ET/2507255/05).

What should you do if you are considering whistleblowing?

Even though being dismissed for whistleblowing is classed as automatically unfair, whistleblowers routinely face victimisation and/or dismissal. Therefore, before making a disclosure, especially to the media, it is crucial to speak to an Employment Law Solicitor who can advise you on how best to make a disclosure without compromising your current and future employment and professional reputation.

To find out more about our services, including Ask HR and HR Genie, please call us on 02476 231000 or email enquiries@askewslegal.co

Please note that this article is for information purposes only and does not constitute legal advice.