If you believe that a ‘wrongdoing’ is occurring at work (for example if somebody is committing a criminal offence), your employment rights are protected if you choose to disclose this wrongdoing.
If you are dismissed or you suffer any detriments because you have ‘blown the whistle’, you can make a claim in the employment tribunal. The reason you are protected from the consequences of making ‘public interest disclosures’ is in order to encourage you to speak out if you come across any malpractice (improper, illegal or negligent behaviour) in the workplace.
You are protected from dismissal when blowing the whistle providing you:
- are a 'worker' (including an agency worker or apprentice)
- believe that malpractice in the workplace is happening, has happened in the past or will happen in the future
- disclose information that falls within certain qualifying categories
- disclose the information to the right person and in the right way (thereby making it a ‘protected disclosure’).
In order to be protected under the whistleblowing legislation, the nature of the disclosure must fall within one of the following categories:
- criminal offences
- failure to comply with a legal obligation
- miscarriages of justice
- threats to an individual’s health and safety
- damage to the environment
- a deliberate attempt to cover up any of the above
If you break the law yourself when making the disclosure, or if the information being disclosed is protected under legal professional privilege, you are not protected.
The disclosure must be made to the right person in the right way as follows:
- You must reasonably believe that the information is substantially true
- The disclosure must be in the public interest. “Public Interest” is not defined but you only have to have a reasonable belief that raising your concern is in the public interest.
- You must reasonably believe that you are making the disclosure to the right 'prescribed person' (usually a more senior employee making a disclosure to a colleague will not qualify). If you feel that you cannot make the disclosure to your employer or someone within the company, there are certain external ‘prescribed’ people who you can make a disclosure to.
- Anything you say to a legal adviser in order to get advice is automatically protected.
MAKING A CLAIM
If you are dismissed for whistleblowing, you can make a claim for unfair dismissal, regardless of your length of service. If you have been victimised or suffered detrimental treatment (eg you have been bullied, demoted or denied promotion), because of blowing the whistle you can make a claim for victimisation and detrimental treatment under the whistleblowing legislation. If you resign as a result of the treatment you have suffered after blowing the whistle, you also have a potential claim for constructive dismissal.
Interim relief applications are particularly valuable to employees who believe they have been dismissed because of blowing the whistle, but you will have to act quickly. Employees have just 7 days from the date of their dismissal to file an interim relief application with the employment tribunal. If the application is successful then the employer will be ordered by the employment tribunal to pay the employee's salary until the full hearing. For the tribunal to grant to the interim relief application you will have to convince them that you have a case which is likely to establish that the reason for your dismissal was the protected disclosure. We have successfully acted for employees in interim relief applications and as a result secured the payment of their salary up to the hearing
If you believe that is malpractice occurring at your place of work and you are unsure what to do, or if you have already blown the whistle and you are suffering detriments as a result, Ashby Cohen can help you. Please contact us for an initial free consultation.
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