If an employee believes that a ‘wrongdoing’ is occurring at work (for example if somebody is committing a criminal offence), whistleblowing legislation protects their employment rights if they choose to disclose this wrongdoing.
You cannot dismiss an employee or treat them in a detrimental way because they have ‘blown the whistle’. The reason employees are protected from making ‘public interest disclosures’ is in order to encourage them to speak out if they come across any malpractice (improper, illegal or negligent behaviour) in the workplace.
Whistleblowing legislation protects employees from dismissal providing they:
- are a 'worker' (including agency workers and apprentices)
- 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 the employee breaks the law themselves when making the disclosure, or if the information being disclosed is protected under legal professional privilege, they are not protected.
The disclosure must be made to the right person in the right way as follows:
- If the disclosure was made before 25 June 2013 then it must be made in good faith ie with honest intent and without malice (for disclosures made after 25 June 2013 there is no requirement for the disclosure to have been made in good faith);
- The employee 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;
- The employee must reasonably believe that they are making the disclosure to the right 'prescribed person'. If they feel that they cannot make the disclosure to you as their employer, or someone within the company, there are certain ‘prescribed’ people who they can make a disclosure to;
- Anything an employee says to a legal adviser in order to get advice is automatically protected.
If your employee is dismissed for whistleblowing, they can make a claim for unfair dismissal, regardless of their length of service. If they have been victimised or suffered detrimental treatment (eg they have been demoted or denied promotion), because of blowing the whistle they can make a claim for victimisation and detrimental treatment under the whistleblowing legislation. And if they resign as a result of any detrimental treatment they have suffered after blowing the whistle, they have a potential claim for constructive dismissal.
If you would like more detailed information about whistleblowing legislation, Ashby Cohen can help you. We specialise in employment law cases, and our years of experience as employment lawyers make us especially qualified to assist you with any whistleblowing issues you may have. Please contact us for an initial free telephone consultation.
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