Whistleblowing

Overview

David Speakman, Linklaters Last Modified  01 June 2015

Whistleblowing is a term often used as shorthand to cover the legal protection offered to certain groups of people who make 'protected disclosures'.

There are two areas of protection:
  • employees are protected from dismissal if the reason, or principal reason, for their dismissal is that they have made a 'protected disclosure'
  • workers are protected from being subjected to any detriment on the grounds that they have made a protected disclosure.
The legislation applies when an employee or worker:
  • makes a qualifying disclosure (the information disclosed must fall under one or more of the six headings set out in the Employment Rights Act 1996)
  • the disclosure is made to the right person
  • the worker or employee is then subjected to a detriment, or dismissed.
  • Employees or workers in this position can complain to an employment tribunal and compensation is uncapped.
Organisations should have a whistleblowing policy to:
  • encourage openness in the workplace
  • encourage disclosures to be made in a reasonable way (for example, not to the press)
  • provide guidance to managers on how to deal with whistleblowers
  • assist when defending claims where correct procedures have not been followed by employees.
The Enterprise and Regulatory Reform Act 2013 introduced changes to whistleblowing law with effect from 25 June 2013.

Recent developments


New law and guidance
The Small Business, Enterprise and Employment Act 2015 became law on 26 March 2015. A provision within it came into force on 26 May 2015, giving the state power to make regulations outlawing discrimination against applicants to the NHS for blowing the whistle.

The Act also includes a provision requiring 'prescribed persons' (bodies or individuals authorised to receive whistleblowing disclosures) to report annually on cases referred to them. The government believes this measure will "increase confidence for those who highlight wrongdoing, and create better, safer workplaces". It follows a consultation which the government ran last autumn (for the full response to the consultation, see Prescribed bodies: annual reporting requirements on whistleblowing).

The government has also produced new guidance for whistleblowers, employers and 'prescribed persons' with the aim of enabling these groups to navigate the existing whistleblowing legislation more easily:
  • the Prescribed persons guidance explains what these bodies do and what whistleblowing means in law. It contains a link to an up-to-date list of to whom disclosures should be made
  • the Whistleblowing: guidance for employers and code of practice explains employers' responsibilities with regard to whistleblowing, including creating and communicating a policy on the issue. The document concludes with a whistleblowing 'code of practice'.