Learn about employee voice, its purposes and use, and the benefits it can bring to an organisation and its workforce. We also look at whistleblowing and creating a speak-up culture
The key piece of whistleblowing legislation is the Public Interest Disclosure Act 1998, which was passed when a series of official inquiries revealed that some corporate disasters and scandals may have been prevented if workers who knew about the dangers had not been too scared to speak out.
There are many other Acts, Orders and Regulations that refer to whistleblowing, a list of which is given at the end of these Q&As. Guidance produced by the Department for Business, Energy & Industrial Strategy covers the laws in more detail.
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What is whistleblowing?
Whistleblowing occurs when an employee or worker (or a group of employees or workers) raises a concern about malpractice or wrongdoing or provides certain types of information, usually about illegal or dishonest practices within an organisation. The information, which has come to the individual's attention through their work, is provided to the employer or a regulator.
The Public Interest Disclosure Act 1998 (PIDA) was passed when a series of official enquiries revealed that disasters and scandals, such as the Bristol Royal Infirmary heart operations or the Zeebrugge disaster, may have been prevented if workers who knew about the dangers had not been too scared to blow the whistle. More recent scandals include MPs' expenses and failings in various NHS trusts.
Some general examples of whistleblowing matters include:
- criminal offences or activities
- exposing fraud
- financial mismanagement or corruption
- mis-selling of pensions or financial products
- physical or emotional abuse of prisoners, children or the elderly in care
- health and safety issues concerning transport that puts the safety of passengers at risk
- health and safety issues concerning the workplace that puts the safety of workers or visitors at risk
- failure to investigate allegations of sexual assault by one employee against another
- failure to comply with legal obligations, or likelihood of failure to comply with legal obligations
- breaches of legislation, for example the Data Protection Act
- medical negligence in a health care establishment
- payments in exchange for awarding contracts
- risks to the environment.
The whistleblower is usually not directly personally affected by the danger or illegality. Whistleblowing occurs when a worker raises a concern about danger or illegality that affects others, for example members of the public. The disclosure does not have to be about the alleged illegal conduct of the employer, although it often is. The disclosure could be about the conduct of a fellow employee, client, or any third party.
Whether employees satisfy the public interest test in whistleblowing claims arising from problems with their own individual contract is an arguable point - see the related FAQ Is an employer liable if they did not know of the disclosure or if the employee was not acting in good faith or in the public interest? for further details.
Whistleblowing guidance is available from both the government and the charity Public Concern at Work (PCAW). The government has published guidance and a code of practice while PCAW has jointly produced a code of practice (PDF 881KB) with the British Standards Institution.
For more information see the related Q&A What steps does the code of practice on whistleblowing recommend?
Separate guidance (PDF 309KB) on whistleblowing within in the NHS has been developed by the Social Partnership Forum with PCAW. This guidance is designed to support NHS trusts in updating or creating whistleblowing policies. The NHS Staff Council has also introduced changes to the terms and conditions of NHS employees and workers which includes a contractual right and duty to raise any concerns which are in the public interest. There is also help line to provide advice and support to NHS staff which was extended in 2012 to staff and employers in the social care sector.
For further information about problems which have arisen within the NHS with respect to compromise agreements, clauses and whistleblowing see the related Q&A What are gagging clauses and are they effective to silence whistleblowers?.
The Financial Conduct Authority (FCA) which took over from the Financial Services Agency in April 2013 has been particularly concerned to encourage whistleblowing where appropriate in the financial services industry.
Following a significant increase in the number of whistleblowing reports being received by the FCA, a new whistleblowing regime was published on 6 October 2015 designed to expand the scope of the previous rules and guidance on whistleblowing.
All employers regulated by the FCA should be aware that the new regime is intended as non-binding guidance for them, even if the rules do not actually apply to them fully.
Financial services institutions must therefore be prepared for increasing scrutiny following the financial crisis.
Employers falling within the new regime have until 7 September 2016 to fully comply with the new rules. One requirement, namely appointing a new whistleblowers’ champion was effective from 7 March 2016.
The FCA has further noted that once the effectiveness of the new rules have been analysed, it will decide whether the rules should be applied to other regulated firms including stockbrokers, mortgage brokers, insurance brokers, investment firms and consumer credit firms.
More information, including the rules, is available on the FCA website.
What steps does the government Code of practice on whistleblowing recommend?
The main stages of the government’s whistleblowing Code of practice which was published in March 2015 along with guidance for employers are set out below together with some supplementary comments.
In February 2013 the charity Public Concern at Work (PCAW) set up the Whistleblowing Commission which published a detailed report in November 2013 which concluded that the current legislation namely the Public Interest Disclosure Act 1998 (PIDA) was not working satisfactorily. The Commission made several detailed recommendations for strengthening whistleblowing law including a strong recommendation for a statutory code of practice. Although the Coalition government made some changes it did not make the Code a statutory one. It remains to be seen whether the Conservative government will act upon any more of the PCAW recommendations. For more information on the recommendations see the related Q&A Are any further developments expected in the area of whistleblowing?
According to the government Code of practice it is considered best practice for an employer to:
- Have a whistleblowing policy in place.
- Ensure that the whistleblowing policy or procedures are easily accessible to all workers. (The PCAW recommended Code also suggests written procedures for raising and handling concerns should ideally identify the types of concerns, providing actual examples relevant to the employer).
- Promote the policy or procedures through all available means including staff engagement, intranet sites, and other marketing communications.
- Provide training to all workers on how whistleblowing matters should be raised and how they will be acted upon.
- Provide training to managers on how to deal with disclosures.
- Create an understanding that all staff should demonstrate that they support and encourage whistleblowing.
- Confirm that any clauses in settlement or compromise agreements do not prevent workers from making disclosures in the public interest.
- Ensure that the organisation’s whistleblowing policy or procedures identifies a range of alternative persons who a whistleblower can approach in the event a worker feels unable to approach their manager. (The recommended PCAW Code suggests in addition that the policy should incorporate a list of the persons and bodies to whom workers can raise concerns which may include the worker’s line manager, more senior managers, senior executives or board members and relevant external organisations, namely regulators).
- Create an organisational culture where workers feel safe to raise a disclosure in the knowledge that they will not face any detriment from the organisation as a result of speaking up. (Subjecting a worker to any disadvantage because they blew the whistle could include, but is not limited to, lack of promotion or demotion, denial of training, closer monitoring, ostracism, an unrequested re-assignment or re-location, suspension, disciplinary sanction, bullying or harassment, victimisation, dismissal, failure to provide an appropriate reference and failing to investigate a subsequent concern).
- Ensure that any detriment towards an individual who raises a disclosure is not acceptable. (The more detailed recommended PCAW Code suggests other stages including that workers should be assured that they will not suffer detriment for having raised a concern, unless the worker knew the information was false.)
- Make a commitment that all disclosures raised will be dealt with appropriately, consistently, fairly and professionally.
- Undertake to protect the identity of the worker raising a disclosure, unless required by law to reveal it and to offer support throughout with access to mentoring, advice and counselling.
- Provide feedback to the worker who raised the disclosure where possible and appropriate, subject to other legal requirements. This feedback should include an indication of timings for any actions or next steps. (The more detailed recommended PCAW Code also suggests for example that the worker raising a concern should be told how and by whom the concern will be handled and be given an estimate of how long the investigation will take and be told that he or she is entitled to independent advice).
Status of government Code of practice
As the Code of practice is non–statutory, it is not mandatory for a court or tribunal to take it into account in a whistleblowing claim. However the courts or tribunals will have less sympathy for employers who have not complied with any of the Code’s recommendations. Both the government’s Code and the PCAW recommended Code set out clear standards for employers, facilitating clear whistleblowing arrangements. Those employers who are looking to achieve the high standards are advised to follow the recommendations in the government and PCAW codes as a matter of best practice.
Which employees and workers are protected by the whistleblowing legislation and are they protected even if they made the disclosure while working for a previous employer?
Almost all workers and employees who ordinarily work in Great Britain are protected by the Public Interest Disclosure Act 1998 (PIDA). In most cases it will be clear which employees are included. Only employees can claim unfair dismissal if they are dismissed because of whistleblowing, but both workers and employees are protected and can claim ‘detrimental treatment’ under PIDA. The definition of worker has a wider meaning for whistleblowing claims so that protection is given to those who would not otherwise be covered. Those who are covered include workers undergoing training or work experience as part of a training course, self-employed doctors, dentists, ophthalmologists and pharmacists in the NHS, agency workers, police officers, student nurses and student midwives.
Non-employees or non-workers
Employers have attempted to argue that some individuals fall outside the legislation altogether, alleging that they are neither employees nor workers.
In Clyde and Co LLP v Bates Van Winkelhof (unreported,  UKSC 32, SC) the Supreme Court of Appeal ruled that limited liability partnership (LLP) members are 'workers' for the purpose of whistleblowing protection. The defendant argued that the claimant (who was an equity member of Clyde and Co LLP) was not a worker or employee and therefore had no whistleblowing protection. She had been on secondment to a Tanzanian law firm, but was sacked from the firm when she reported to Clyde & Co LLP her belief that the managing partner of the Tanzanian firm was involved in money laundering and had paid bribes to secure work and to affect the outcome of cases. She was later expelled from the LLP. She brought a number of claims, including a whistleblowing complaint. The Supreme Court decision means that that LLP members are 'workers' for the purpose of whistleblowing protection (and should benefit from part-time worker, national minimum wage, pension auto-enrolment and working time rights, as well as from protections against unlawful deductions from their pay).
If a junior doctor makes a disclosure to an organisation that arranges his placements at the hospital which employs him, is that a 'protected disclosure' under whistleblowing law?
In Day v Lewisham and Greenwich NHS Trust and Health Education England (unreported, UKEAT/0250/15 10 February 2016, EAT) a junior doctor in training employed by the Trust at Lewisham hospital had training placements which were arranged by Health Education England (HEE) which also paid part of his salary. The doctor made various disclosures to the Trust and HEE regarding patient safety which he claimed led to him suffering detriments. He brought employment tribunal proceedings against the Trust and HEE. An employment tribunal struck out the claim against HEE as their relationship did not come within the extended definition of 'worker' (e.g. agency or contract workers). The doctor's relationship with HEE was well outside the category of employees and workers and was not protected.
The armed forces, intelligence officers, volunteers and the genuinely self-employed are not covered by PIDA. Job applicants and ex-employees can also give rise to problems.
Employers and employees who carry out all their work outside Great Britain can still bring claims of unfair dismissal in Great Britain if there is a 'substantial connection' to Great Britain.
The behaviour that gives rise to the concern does not therefore have to take place in Britain.
Basically there are no longer any provisions in the Employment Rights Act 1996 (ERA 1996) which limit the territorial extent. Therefore employers with employees working overseas whose employment has a substantial connection with Great Britain can be presumed to be covered.
The categories of employees falling within the scope of the whistleblowing (and other) provisions of the ERA 1996 can be summarised as:
- employees posted abroad for the purpose of a business carried on in Great Britain
- mobile employees whose base is in Great Britain
- employees working in a British enclave overseas, for example at a British diplomatic mission or military base, and
- those with a 'substantial connection' to Great Britain.
See the leading cases of Lawson v Serco Ltd  IRLR 289, HL and Ravat v Halliburton Manufacturing and Services Ltd (Scotland) (unreported,  UKSC 18 February 2012, SC).
In a recent case involving the Olympus company, the first non-Japanese Chief Executive was dismissed just two weeks into his 44 month contract. He had been the President of the company for six months before becoming its Chief Executive in October 2011. He could not bring a normal claim for unfair dismissal as he had not satisfied the one year’s continuous employment (which increased to two years'continuous employment from 6 April 2012). However, because he blew the whistle on the company after questioning the board about allegations of irregular financial dealings and fraud, he was able to bring a whistleblowing claim in an attempt to circumvent the usual qualifying period. At the time of his dismissal he was living and working in Japan and when he submitted a claim in a UK employment tribunal the company argued that the tribunal had no jurisdiction. The jurisdictional issues arising in this case did not reach a court decision as it was settled before a pre-hearing review on the jurisdiction issue and the settlement has been rumoured to be in the region of £10 million.
It is hard for employers to predict if there is British jurisdiction in any particular factual scenario,so if employers wish to choose or avoid British jurisdiction they should consider including an express choice of law and jurisdiction in the contract of employment.
A worker can complain of suffering a detriment because they made a protected disclosure even if the disclosure was made whilst working for a previous employer. In an unusual case, BP plc v Elstone and another  IRLR 558, EAT, an employee had worked for BP for years, but between 2006 until 2008 was employed by another company, Petrotechnics Ltd, which worked jointly with BP. During this time the employee made a series of protected disclosures to two senior BP employees about safety concerns at Petrotecnics. The latter company dismissed him for gross misconduct for disclosing their confidential information. He started work again as a consultant to BP, but this contract was terminated when Petrotechnics told BP that they had dismissed him for gross misconduct for disclosing Petrotechnics' confidential information.
(In the above case the claimant was an employee, but the Employment Appeal Tribunal commented that had the claimant been a job applicant he would not have been protected).
Is an employer liable if one employee causes detriment to another employee because of their whistleblowing?
Yes under the usual principles of vicarious liability if employee ‘A’ acts because of employee ’B's protected disclosures and this causes a detriment to employee ‘B’, then the employer will be liable. Employers must always be seen to take steps to curb employee ‘A’s behaviour in such situations.
Following uncertainty in the law in this area, legislation under the Enterprise and Regulatory Reform Act 2013 made it clear that protection will apply to whistleblowers who being are bullied and harassed by fellow employees or workers. Similar to the Equality Act 2010, this amendment makes those who victimise whistleblowers personally liable. Employers are then vicariously liable for their actions as well.
Employers will therefore be potentially vicariously liable if an employee or worker who has blown the whistle suffers a detriment from another employee or worker (provided that person is acting in the course of their employment). The employer will have a defence if it can show it took all reasonable steps to prevent the detrimental conduct. (Before the new legislation, employers in some cases were still liable for their employee's actions under normal principles of vicarious liability).
An example of an employer managing to avoid vicarious liability comes from the case of NHS Manchester v Fecitt and others  IRLR 64, CA where the the NHS employer was found not to be vicariously liable for the acts by employees at a walk-in health centre which caused detriment to three nurses. The nurses had made genuine protected disclosures about another employee who had been exaggerating his qualifications. The nurses were then subjected to detriment by the actions of other members of staff at the centre who were supportive of the employee. The Court of Appeal said that the NHS were not vicariously liable for the actions of the other workers. This was because the decisions taken by the NHS were not because of the whistleblowing. The case suggests that in some situations employers may avoid liability for their failure to protect staff who receive reprisals following their whistleblowing. However the best practice approach for employers is always to be seen to behave pro-actively to protect whistleblowers.
Whistleblowing allegations if they are revealed can often lead to a breakdown in workplace relationships between different employees. However employers have to be careful to ensure that any steps taken to resolve the issues between the employees do not amount to detrimental treatment of the whistleblower either.
Is an employer liable if they did not know of the disclosure, or if the employee was not acting in good faith or in the public interest?
An employer may not be liable for a whistleblowing claim if they did not know of the disclosure, or if the employee was not acting in good faith, or in the public interest. However the law has changed concerning these aspects and there are some grey areas in the way the law seems to be applied.
The Enterprise and Regulatory Reform Act 2013 (ERRA) changed various aspects of employment law, including amendments to the Public Interest Disclosure Act 1998 (PIDA). Employers should check that their whistleblowing correctly reflect the rules concerning public interest.
The ERRA not only changed the rules about public interest but affected good faith and employers' knowledge and these aspects are dealt with under separate headings below
There had been a series of cases where workers had gained whistleblowing protection where the disclosure just related to their own employment contract. The leading case in this series was Parkins v Sodexho  IRLR 109. To prevent this, the then coalition government changed the law in 2013 so that a worker must reasonably believe that their disclosure was 'in the public interest'. The changes may have solved some problems, but have created others as the worker only needs a reasonable belief that their disclosure was in the public interest.
The following points apply:
- To be protected, workers must make the disclosure with a reasonable belief that it is made in the public interest; the requirement that a protected disclosure must be made in good faith is removed.
- The majority of disclosures made about a breach of an employee's own employment contract, will no longer be covered by the whistleblower protection. (Breaches of employees' own contracts of employment should be raised as a grievance in the usual way).
- There is a new power for the Employment Tribunal to still take good faith into account and reduce compensation by up to 25 per cent where the protected disclosure is not made in good faith.
- In other words, disclosures do not have to be in good faith at all. However, if a disclosure is in bad faith compensation may be reduced by up to 25 per cent.
Case law examples
In Chesterton Global Ltd and another v Nurmohamed (unreported, UKEAT/0335/14 8 April 2015, EAT) a director in an estate agency's Mayfair office blew the whistle by complaining that his employer was overstating costs, thus driving down the bonuses for him and 100 other senior managers. Is such a disclosure made in the public interest if those affected are only a group of staff and not the wider public?
The employment tribunal and the Employment Appeal Tribunal (EAT) both found that the disclosure was made with a reasonable belief that it was in the public interest. An appeal to the Court of Appeal is due to be held in October 2016.
In Underwood v Wincanton Plc (unreported, UKEAT/0163/15 27 August 2015, EAT) a lorry driver complained that he and three other lorry drivers were not getting overtime fairly in breach of their contracts of employment. The EAT said that a complaint relating t contract terms concerning only a group of workers could meet the public interest test.
In Morgan v Royal Mencap Society (unreported, UKEAT/0272/15 22 January 2016, EAT) one individual employee's complaint about cramped working conditions was held to be a potentially protected disclosure for 'whistleblowing' purposes. The EAT held that it was difficult for whistleblowing claims to be struck out at a preliminary hearing as normally questions of fact should be determined by hearing full evidence. It was at least, reasonably arguable that the employee could reasonably subjectively believe that her complaints were in the wider interests of employees generally, even though she was the principal person affected. She could still meet the 'public interest' test for protected disclosures.
Although an individual contractual dispute would not normally satisfy the public interest test, a disclosure relating to a relatively small group of people may do so. Any worker's belief that a disclosure was made in the public interest simply needs to be objectively reasonable
The whistleblowing legislation originally only protected workers who followed the procedures laid down in the legislation and who made the disclosure in good faith with a genuine belief in the information being disclosed and who were not motivated by personal gain.
Whistleblowers now do not have to make the disclosure in good faith to get protection. However if a disclosure is not made in good faith, any compensation could be reduced. An example of a disclosure which is not made in good faith could be one which is made for personal gain or perhaps to seek revenge on a colleague.
Case law examples
The following cases further explain the good faith element of whistleblowing claims:
Babula v Waltham Forest College 2007 IRLR 346,CR 1026, CA - employees are protected under the whistleblowing legislation if they honestly believe that the matter in respect of which they are blowing the whistle is a genuine legal obligation (even if it is later discovered there is no such obligation).
Premier Mortgage Connections Ltd v Miller (unreported, UKEAT/0113/2007 2 November 2007, EAT) - for a disclosure to be protected it must be made to a person who is reasonably believed to have legal responsibility for dealing with the matter when the disclosure was made.
Roberts v Valley Rose Ltd (t/a Fernbank Nursing Home) (unreported, UKEAT/0394/2007 31 October 2006, EAT) - a disclosure will not be made in good faith if there is an ulterior motive as the predominant purpose of making it.
Aryeetey v Tuntum Housing Association (unrepoprted, UKEAT/0324/08/RN 8 April 2009, EAT) - the pursuit of a vendetta with no reasonable belief in the truth of the accusations is not a protected disclosure.
Muchesa v Central Cecil Housing Care Support (unreported, UKEAT/0443/07 22 August 2008, EAT) - another example of an employer defeating a whistleblowing claim because the employee did not reasonably believe the information disclosed.
Meares v Medway Primary Care Trust (unreported,  EWCA Civ 897 28 July 2011, CA) - whether an alleged protected disclosure is made in good faith is a question of fact for the tribunal to decide. If the tribunal believes in an ulterior motive (for example personal antagonism) it can find there was no good faith. A tribunal does not have to identify other motives or what proportion those motives were of the overall reason.
Ezsias v North Glamorgan NHS Trust,  IRLR 550, EAT- a consultant surgeon’s alleged protected disclosures were not made in good faith so he had not been automatically unfairly dismissed due to making a protected disclosure. (This case is also authority for the fact that an employer may not need not follow its dismissal procedures for misconduct where the dismissal is primarily because of a breakdown in trust and confidence caused by the employee's conduct).
Barton v Royal Borough of Greenwich (unreported, UKEAT/0041/14 1 May 2015, EAT) - the claimant was already on a final warning for unrelated conduct matters when a work colleague at the Council informed him that another colleague A had insecurely emailed home hundreds of documents containing personal data.
The Council were investigating if A had done this and told the claimant not to contact the Information Commissioner's Office (ICO) to discuss the matter again during its investigation. The Claimant did however contact the ICO again and was then was dismissed for misconduct by breaching a reasonable instruction. He lost his claim at the employment tribunal and the Employment Appeal Tribunal (EAT) who ruled that he did not have a reasonable belief that the contents of his email to the ICO were true, so that was not a protected disclosure. The telephone call he made to seek advice could not have been a protected disclosure either, as the ICO was not prescribed for that purpose. The EAT rejected an argument that the claimant's phone call could be linked to his previous email, so as to make a protected disclosure. Each disclosure must be considered separately following Bolton School v Evans  IRLR 140, CA.
If a case concerns dismissal of a whistleblower, then the employer must have known about the protected disclosure at the time of the decision to dismiss. If the employer did not know about the protected disclosure then it could not have been the reason for the dismissal or the detrimental treatment. The case Western Union Payment Services v Anastasiou (unreported, EAT/0135/13 21 February 2014, EAT) is an example of an employer who had no knowledge of the protected act and therefore could not have been influenced by the whistleblowing when subjecting the employee to the alleged detrimental treatment.
Burden of proof
Who has to prove what in a whistleblowing case is complicated. In a dismissal following a whistleblowing situation it is up to the employer to show what the reason for the dismissal was. The employee does not have to disprove the employer’s reasons or to positively prove a different reason. However, the 'reversal of the burden of proof' rules in discrimination cases apply if the claimant claims to have suffered a detriment as a result of unlawful discrimination following a whistleblowing situation - see Kuzel v Roche Products Ltd (unreported,  EWCA Civ 380, CA). What this means is that an employer has to be able to show a positive case for the claimant’s treatment. As well as denying that the claimant made protected disclosures and was mistreated as a result, the employer also has to be able to explain why the claimant was treated as they were, if it was not to do with the whistleblowing.
Do employers have to introduce a whistleblowing policy?
Some employers may think that having a whistleblowing policy could attract trouble by encouraging staff to blow the whistle. However, although it is not a legal requirement under the Public Interest Disclosure Act 1998 (PIDA), there are many good reasons for having a policy which may help to prevent an issue escalating. A report (PDF 1.5MB) published in 2010 by Public Concern at Work (PCAW) which looked at the first 10 years of PIDA showed that 38% of individuals said their employer had a whistleblowing policy.
It is good practice for all organisations to establish and promote an effective whistleblowing policy and both the government and PCAW recommend this. The reasons for having a policy can be summarised as:
- Organisations in some sectors (such as financial services) may be subject to separate legal requirements to have such a policy. For example, companies that are admitted to listing by the UK Listing Authority and incorporated in the UK are required to apply the principles of the Financial Reporting Council UK Governance Code (formerly the Combined Code) on corporate governance. The Code provides that the audit committee of listed companies should check how staff can raise concerns in confidence about possible improprieties in matters of financial reporting (or other matters). There should be arrangements for the proportionate and independent investigation of such matters and for appropriate follow-up action. Such companies must state in their annual report how they have complied with this Code and a whistleblowing policy is the obvious way to demonstrate compliance. View UK Corporate governance code.
- Employers who operate a policy are less likely to be taken to an employment tribunal. For example in the first three years following PIDA, there were over 1,200 claims from people alleging they had suffered a detriment as a result of whistleblowing. Claims and threats of claims are on the increase especially in light of the recent financial crisis.
- Some of the compensatory awards made are substantial - see the related Q&A Is there case law guidance on the amount of compensation an employer will have to pay an employee who is dismissed and then succeeds in a whistleblowing claim?.
- If a worker is dismissed for making a qualifying disclosure then it is automatically unfair dismissal subject to certain conditions. For example, the worker should honestly believe in the disclosure. Clearly, if there is a policy in place and the worker ignores it and for no good reason blows the whistle externally (for example to the press, the police or an MP), then the employer may be able to query the worker’s honesty. An effective whistleblowing policy is therefore a factor that a tribunal will consider when deciding if a wider disclosure is reasonable and protected by PIDA.
Other reasons to have a policy include the following:
- A policy may enable employers to nip a problem in the bud before it escalates or is disclosed externally, thus reducing the risk of involvement by external regulators or adverse media publicity.
- Without a policy, workers may fear comeback and doubt the employer will deal with the matter properly.
- Costs of investigating any problems, such as fraud, will be reduced as problems can be caught quickly.
- Management time and resources will be reduced if problems are dealt with quickly.
- It can help create a workplace where employees understand their responsibilities and management can demonstrate their accountability.
- An effective whistleblowing policy may enable corrective action to be taken.
- A good policy will enable employers to follow due process to dismiss those who maliciously make untrue allegations.
- It indicates to those outside the organisation, for example investors or customers, that good practice is being followed.
- An open and honest culture of honesty is good for morale.
Essential points for employers
Employers should bear in mind that although whistleblowing issues may not arise frequently they should be prepared when they do. Therefore employers should:
- Ensure they have a comprehensive whistleblowing policy and familiarise staff and managers with the policy following the Government guidance and code of practice.
- Keep an electronic or paper trail of any comments or grievances raised which may amount to a qualifying disclosure.
- Treat even a troublesome individual's concerns seriously if there may be a qualifying disclosure, by checking if the worker reasonably believes the disclosure is in the public interest and that one of six different situations has occurred. This includes a criminal offence, breach of any legal obligation, danger to the health and safety of any individual.
It is important to remember that having a policy is more than an exercise in ticking boxes. For example, at Enron there was an exemplary whistleblowing policy. However the culture created by the management was such that no-one felt able to speak up about the problems. It is vital that management take a lead in promoting an open and accountable culture.
See also the related Q&A What is the nature of the protection afforded to a whistleblower?.
What is the time limit for bringing a whistleblowing claim?
Like discrimination cases, whistleblowing claims must be presented in the tribunal within three months of the last act by the employer in response to the whistleblowing. In many cases (but not always) the last act will be a dismissal. The time to bring a claim actually runs from the date of ‘the act or failure to act to which the complaint relates’. If there is a series of similar acts or failures then the time runs from the last of the series of acts.
Important points to note on the time limit include:
- The three month period runs from the date of the act complained of, not from the detriment alleged to be suffered as a result.
- Time limits can be extended if it was not reasonably practicable to present the claim in time. If a detriment is suffered more than three months after the act complained of, then it could be argued by the employee that time should be extended as it was not reasonably practicable to present the claim within three months of the act.
- From April 2014 the three month time limit can be extended in most cases to accommodate Acas early conciliation attempts before lodging a claim. The effect on time limits is that the conciliation period 'stops the clock' for lodging any tribunal claim. The usual three month time limit will therefore not expire while Acas is attempting to conciliate. The employee will then have at least four weeks from the date the conciliation certificate is issued to lodge a claim. For more information see the Q&A What is early conciliation? in our Tribunals claims, settlement and compromise Q&As.
In Unilever UK Plc v Hickinson (1) and Sodexho Ltd (2) (unreported, UKEAT/01/0192/09 24 June 2009, EATthe claim was found to be out of time. The employee suffered a detriment which was removal from the site where he was working followed by a dismissal four weeks later. However the Employment Appeal Tribunal found that there was no continuing detriment between those times. It is therefore very important to identify the date the detrimental act complained of to see if a claim has been brought in time.
Employers can completely defeat whistleblowing claims by showing that the claim is out of time. There must be at least some detrimental conduct within three months before the date of the presentation of the claim. If not, then the claim will be too late. It is irrelevant if the last act complained of forms part of a continuing act with earlier incidents if the last example was more than three months ago - see St John Ambulance v Mulvie (unreported, UKEAT/0129/11/DA 1 July 2011, EAT).
Who are external regulators and what is the nature of their involvement with whistleblowing cases?
A wide range of regulators may get involved in whistleblowing cases, including:
- Financial Services Authority
- Health and Safety Executive
- The Information Commissioner
- Regulator of Social Housing
- Care Quality Commission
- Pensions Regulator
- Food Safety Agency
From 1 October 2014 this list of prescribed persons was amended and a comprehensive list was set out in the schedule to the Public Interest Disclosure (Prescribed Persons) Order 2014. The new list includes MPs, specified Government ministers and public bodies, as well as about 60 regulators. In February 2016 the government further updated the list of prescribed persons, to whom a protected disclosure can be made.
A worker will be protected by the Act if they makes a qualifying disclosure to a person prescribed in the Order. Of course they must reasonably believe that the disclosure is in the public interest and is substantially true and falls within the matters which the prescribed person deals with.
A regulator can therefore become involved simply because the whistleblower contacts them directly; or because an employment tribunal may refer matters to a regulator. This can happen where the employee has indicated their consent on the new tribunal claim ( ET1) form. Claimants making a Public Interest Disclosure Act (PIDA) claim are specifically asked if they agree to the tribunal forwarding details of the whistleblowing part of their claim to a ‘relevant regulator’. The procedure is designed to make it easier for regulators to access whistleblowing claims and give tribunals a more active policing role.
If the claimant does agree (and most do) then the Tribunals Service will tell both parties that the ET1 details have been sent on to the relevant regulator. The regulator will then decide what action to take. The investigation undertaken will be entirely independent from the outcome of the underlying tribunal case. If ultimately the whistleblowing tribunal claim fails or settles, the regulator can still investigate the facts behind the original allegations.
Points to consider include the following:
- Most employers need not be concerned - an employer who has acted properly concerning the protected disclosure should be absolved.
- If an employer has been involved in malpractice then there may be severe penalties if the matter is investigated by the relevant regulator, including imprisonment and unlimited fines.
- Problems may arise if there is an investigation by regulators on the basis of a spurious claim by a vexatious employee. Misconceived referrals to a regulator will be damaging in terms of publicity and a waste of management time.
- Unscrupulous employees may try to hold employers to ransom before submitting a tribunal claim by threatening to give information to a regulator if the employer doesn’t settle.
- Employees are only protected under the legislation if they have a reasonable belief in the validity of the alleged wrongdoing (even if they are proved ultimately to be wrong). Employers will therefore have a defence as long as they can prove an employee’s lack of belief. Having an internal whistleblowing policy will help nip claims in the bud before a regulator is involved.
- Employers will need to keep updating the content, for example employers who list ‘prescribed persons’ in their whistleblowing policy would need to update this after the 2014 Order.
- Under the Small Business,Enterprise and Employment Act 2015 the Secretary of State has a power to make regulations requiring the prescribed persons i.e. regulators to report annually on the whistleblowing disclosures they receive.
The Department for Business, Innovation and Skills (BIS) has published guidance with a list of the prescribed bodies (PDF 647KB) to whom employees can make a protected disclosure.
Is there case law guidance on the amount of compensation an employer will have to pay an employee who is dismissed and then succeeds in a whistleblowing claim?
The unique aspect about whistleblowing claims is that there is no upper limit on the amount of compensatory award available to whistleblowers who are unfairly dismissed for making a protected disclosure. The normal statutory maximum cap on compensation for unfair dismissal claims therefore does not apply. Where a disclosure is protected, a worker must not to be subjected to any detriment and any resulting dismissal will be automatically unfair. To bring an unfair dismissal claim, an employee does not need to satisfy the two years' service requirement.
There appears to have been an increasing interest for employees with less than two years' service to claim that they have been dismissed for exposing employer wrongdoing, therefore avoiding the minimum length of service requirements needed to bring an ordinary unfair dismissal claim.
The Enterprise and Regulatory Reform Act 2013 adjusts the potential compensation for whistleblowing. It removes the requirement that a protected disclosure must be made in good faith and replaces this with the concept of a reasonable belief that the disclosure is made in the public interest. As part of these amendments if an employment tribunal finds that a disclosure has not been made in good faith the compensation award could be reduced by up to 25%.
A report published in 2010 by Public Concern at Work which looked at the first 10 years of the Public Interest Disclosure Act 1998 (PIDA), showed that over £9.5 million has been paid by employers to successful PIDA claimants. The average award over the years was £113,667 far higher than an average unfair dismissal claim. The highest amount made by a tribunal for a whistleblowing claim was over £3.8 million and the lowest £1,000.
However in an a 2012 unreported case involving the Olympus electronics company, its Chief Executive blew the whistle after uncovering allegations of irregular financial dealings and fraud. The claim was rumoured to be for £38 million and the out of court settlement was rumoured to be in the region of £10 million.
If an employee earns a high salary, this can result in a large compensation awards. For example, in the case of Royal Cornwall Hospital NHS Trust v Watkinson(unreported, UKEAT/0378/10/DM 17 August 2011, EAT) the former chief executive of the NHS Trust earned around £148,000 per year. He was suspended after concerns about his management. He claimed he was dismissed because he opposed plans to move cancer services outside Cornwall and was about to reveal legal advice which suggested the plans were unlawful without a public inquiry.He won his unfair dismissal claim as the Trust had failed to follow proper procedures during his dismissal and was awarded £1.2 million for the whistleblowing part of the claim.
Other examples of compensation awards include:
In Holden v Connex South East (unreported, ET/ 2301550/00 15 February 2002, ET) a train driver was awarded £55,000 by the employment tribunal, including £13,000 injury to feelings and £5,000 in aggravated damages. In his capacity as health and safety representative the employee raised concerns about public and workplace safety, particularly that there was an increased risk that red signals would be missed as a result of the hours worked by drivers.
Following the Ladbroke Grove crash, someone other than the employee told the media about the reports he had previously sent to the Health and Safety Executive. After he was given a final written warning concerning the report, he resigned suffering from stress. The tribunal upheld his PIDA claim and held that it was not necessary under PIDA that all the allegations in his report were accurate.
In Lingard v HM Prison Sevice (unreported, ET/1802862104, 30 June 2005, ET) a former prison officer was awarded £477,600 damages plus £90,000 costs by the employment tribunal after she reported bullying and intimidation of inmates.
In Sardari and another v South Devon Healthcare NHS Foundation Trust and another (unreported, ET/1700085/2013 24 January 2014, ET) a senior NHS manager who raised concerns about an alleged biased recruitment process was subjected to a detriment for making a protected whistleblowing disclosure. She was awarded £228,778
Employers should note that the guidelines for assessing compensation in discrimination cases as laid down by the Court of Appeal in Vento v West Yorkshire Police CA 2002 EWCA Civ 1871 apply also to assessment of compensation in whistleblowing cases - see the Q&A How is discrimination compensation calculated and can employment tribunals make large awards? in our Tribunal claims, settlement and compromise Q&As.
What is the nature of the protection afforded to a whistleblower?
A number of claims are available to a whistleblower including:
It will be automatically unfair dismissal to dismiss a worker for making a qualifying disclosure. The employee may claim automatically unfair dismissal even if they don't have one year’s continuity of employment (or two years for employees starting employment on or after 6 April 2012). The compensation is also uncapped. The categories of persons to whom protected disclosures can be made include the employer, legal advisers, a Minister and a prescribed person set out by way of regulation, including for example The Environment Agency, Food Standards Agency, the Serious Fraud Office, the Health and Safety Executive and so forth.
Detrimental treatment under the Public Interest Disclosure Act 1998 (PIDA)
The Public Interest Disclosure Act 1998 protects a whistleblower if they raise a concern about wrongdoing internally and in most cases, with an external regulator. (The external disclosure must usually be raised with the employer or a prescribed person first. In some circumstances it may be acceptable that the disclosure has not been raised internally, for example because the worker believes their evidence would be destroyed or they would be penalised in some way).
Breach of human rights
In rare cases there may also be a Human Rights Act claim. The most likely human right to have been breached in a whistleblowing situation is the right to freedom of expression under Article 10 of the the European Convention on Human Rights. (The Human Rights Act 1998 may be replaced by sometime in the future by the new Conservative government).
For example, in Heinisch v Germany  IRLR 922, ECJ the claimant had been dismissed for distributing a leaflet that publicised the poor standards of care at a nursing home for the elderly. She was later mistreated for raising the issue and eventually dismissed. She won her claim that her dismissal and the courts' refusal to order her reinstatement violated Article 10. Whistleblowing is therefore protected speech under Article 10. The European Court of Justice noted:
- The information the claimant had disclosed was of public interest, particularly because those suffering detriment could not speak up.
- The claimant had approached the employer previously, but had not received a positive response.
- The claimant had not knowingly or frivolously reported incorrect information.
- The claimant had acted in good faith.
What is the employer’s position if the whistleblower commits an illegal act leading to the disclosure?
The employee may not be protected and the employer may be able to discipline or dismiss them in the usual way.
In Bolton School v Evans (2006) the Court of Appeal held that the protection from detriment which employees enjoy under the whistleblowing legislation covers only the disclosure itself, not the conduct of the employee leading to that disclosure.
A teacher hacked the school’s computer system to demonstrate deficiencies in the security of its IT system and to prove breaches of the Data Protection Act. The whole system had to be shut down, resulting in a £1,000 loss. The teacher was asked to attend a disciplinary hearing and received a written warning. He resigned and claimed constructive unfair dismissal on the basis that he had suffered a detriment as a result of making a protected disclosure.
The court held that the teacher’s hacking of the school’s IT system was not part of a protected disclosure.
What are gagging clauses and are they effective to silence whistleblowers?
Between 2011 and 2013 there was a great deal of publicity about the use of gagging clauses. This issue was highlighted as a result of compromise agreements negotiated with employees leaving the NHS.
What are gagging clauses?
Gagging clauses are used by many employers, not just the NHS. They may be included in employment contracts or compromise or settlement agreements. In fact they are a normal part of a professionally drafted compromise or settlement agreement. The clause simply states that the terms of the agreement are not to be made public, but kept quiet between parties. The reason behind this is often to stop other employees from knowing that the departing employee has received a lucrative departure payment and to prevent them from seeking a similar (but perhaps unwarranted) package for themselves.
However gagging clauses which seek to prevent an individual from raising any concern are not permissible and conflict with the whistleblowing legislation.
What does the law say?
Just because an employer or their lawyer includes a gagging clause in an agreement does not mean that the law will enforce the clause. The Public Interest Disclosure Act 1998 (PIDA) clearly bans all gagging clauses if they try to prevent an employee from disclosing information (for example about health and safety) which would constitute a protected disclosure.
Section 43J of PIDA states that any provision in an agreement is void if it seeks to preclude a worker from making a protected disclosure.
Any employee who has signed a compromise or settlement agreement with a gagging clause and then makes a protected disclosure can use 43J as a defence if the employer tried to recover any money given in the compromise or settlement agreement.
The use of a gagging clause within an NHS compromise or settlement agreement has always been unenforceable if it tries to stop that NHS employee from blowing the whistle under PIDA (in the same way as for any other employee).
No new legislation is therefore required to ban gagging orders in the NHS. However a minority of NHS staff had the impression that the compromise or settlement agreement presented to them operated as a wide gagging clause preventing them from speaking out about patient care concerns. Whereas in fact Section 43J of PIDA should enable them to speak out anyway. The employees were perhaps not aware of that or did not believe they could speak out.
Media reports have suggested that many doctors and nurses were frightened of suspension or dismissal for raising concerns. A special report from Public Concern at work suggested that this fear did arise far too frequently, but that some NHS organisations handled whistleblowing seriously and appropriately.
Although the law enabled employees to speak out, problems have clearly arisen in the NHS in practice. As a result, the Health Secretary made an announcement in March 2013 that NHS compromise or settlement agreements must include a clause making it clear that nothing in the agreement will prevent an individual blowing the whistle and that no NHS compromise or settlement agreements will prevent people speaking out about patient safety or care. This is in addition to existing:
- guidance which states that all NHS trusts should prohibit confidentiality or gagging clauses in contracts of employment and compromise agreements which seek to prevent the disclosure of information in the public interest, and
- guidance on best practice, and
- a requirement that the Department of Health signed off all special severance payments, and
- a requirement that all non-contractual 'special' severance payments for employees dismissed following disciplinary action must be approved by HM Treasury.
Severance payments as a result of judicial mediation also now require approval from the Department of Health.
Guidance on compromise agreements and severance payments in the NHS is available on the NHS Employers website.
Other types of gagging clauses include those relating to salary. For further information on these see the Q&A What are the effects of secrecy (gagging) clauses preventing employees from discussing their pay? in our Equal Pay Q&As.
Can the employer dismiss an employee for causing problems after whistleblowing, and not because of the actual disclosure itself?
If an employer dismisses the employee for generally causing problems after they have blown the whistle, (and not because of the actual whistleblowing), then the employee may establish a normal claim for unfair dismissal. In these situations it is unlikely there will be a successful whistleblowing claim under the Public Interest Disclosure Act 1998 as well. Of course any dismissal always has to be handled fairly following the employer’s own dismissal procedures and the Acas Code of practice on disciplinary and grievance procedures.
It is often very difficult to isolate the actual reason for dismissing the employee, especially if the dismissal is closely connected to other earlier whistleblowing events.
In Panayiotou v Chief Constable Kernaghan and another (unreported, EAT/0436/13 16 April 2014, EAT) a police officer made protected disclosures relating to his colleagues' attitudes towards certain racial groups and the victims of rape, abuse and domestic violence. His disclosures were investigated and he was found to be largely correct. However, he was not satisfied with the outcome of the investigation and continued to take the action he believed appropriate to right the wrongs within the force himself.
He continued to raise numerous complaints and a great deal of management time was devoted to responding to his correspondence and investigating these complaints. He also took extensive periods of sick leave, during which, the employer paid sick pay but suspected that he was working in the family business. He was placed under surveillance and arrested at his home for allegedly receiving sick pay by deception.
He was dismissed on the basis that his outside business interests were 'incompatible' with his role as a police officer and in breach of the Police Regulations 2003 and he claimed unfair dismissal and detrimental treatment because he was a whistleblower.
The Employment Appeal Tribunal found that although the protected disclosures were the 'genesis' of the claimant's treatment, his actions after the disclosures, including his campaigning and persistent sick leave led to his dismissal. This conduct could be distinguished from the protected disclosures.
In a similar case of Kurt-Elli v Rolls-Royce (unreported, April 2014, ET) an engineer blew the whistle on allegations of potentially serious problems with the company’s engines used in aeroplanes. An internal investigation failed to find evidence to support these allegations. However the engineer refused to accept this and accused senior colleagues of conspiring in a cover up to conceal potential faults with its jet engines. He was dismissed, not because he blew the whistle, but because of his behaviour and conspiracy theories and refusing to accept that other problems were not being deliberately covered up.
A dismissal stemming from events closely connected to a protected disclosure can therefore be distinguished from the actual disclosure itself to avoid liability for the employer in whistleblowing claims. However employees must as always be treated fairly with proper procedures in relation to any investigation, disciplinary process and any subsequent dismissal.
Is an employer liable in a whistleblowing claim if the employee disapproves of the employer’s behaviour?
An employer can defend a whistleblowing claim if the employee simply disapproves of the employer’s behaviour. An employee or worker must do more than express a belief that the employer’s actions are wrong. A protected disclosure needs to actually set out an identifiable obligation that the employer has allegedly breached. An employee or worker must reasonably believe is that the disclosure shows a past or likely future wrongdoing that is either:
A criminal offence.
Failure to comply with a legal obligation.
A miscarriage of justice.
Endangering of someone’s health and safety.
Damage to the environment.
Covering up wrongdoing in the above categories.
For example, in Kilraine v London Borough of Wandsworth ( CA 2018) the Court of Appeal said that the employer had a defence to the claim because the employee failed to disclose information with enough specific, factual content to show any malpractice of the types listed in the legislation.
In another case of Eiger Securities v Korshunova (EAT 2016) the employer also managed to show that the employee was not protected as her disclosure did not tend to show a breach of a legal obligation.
Employers must ensure their managers are aware that any employees or workers who make allegations may be whistle blowers and address concerns appropriately in accordance with a whistle blowing or dignity at work policy. However, if the employee cannot show one of the six categories of wrongdoing listed above the employer should have a defence to any claims.
Following the introduction of tribunal fees in July 2013 the number of whistleblowing claims have fallen. Further developments are expected in the area of whistleblowing and are are dealt with under separate headings below:
Whistleblowing Commission recommendations
The changes referred to above were criticised by some as a missed opportunity to take a wider look at Public Interest Disclosure Act 1998. In February 2013 the Public Concern at Work (PCAW) charity had set up a Whistleblowing Commission which examined the then arrangements for whistleblowing and made recommendations for change. The Commission launched a public consultation and published its report in November 2013. Some of the recommendations were taken up by the government, but many were not and PCAW will continue for more changes which are highlighted below.
Code of practice
The key recommendation in the report was the creation of a statutory code of practice which can be taken into account by courts and tribunals faced with whistleblowing issues. The Commission developed such a code, but the recommendation was only partially acted upon when the government produced a concise and non statutory code in March 2015.
For further information on this see the related Q&A What steps does the government code of practice on whistleblowing recommend?.
PCAW also started their First 100 campaign to encourage organisations to sign up to their code. Employers who have signed up include the Royal Bank of Scotland, ITV, Civil Aviation Authority, the Nursing and Midwifery Council and Chelmsford City Council.
The report made other recommendations which have not been implemented. The Government has published improved guidance and imposed a duty on regulators and other prescribed persons to publish information about whistleblowing concerns raised with them. However the other possible recommended future developments, referred to below, remain outstanding in whole or in part:
- Strengthening and clarifying the legal protection for whistleblowers contained within PIDA.
- Introducing specific provisions against the blacklisting of whistleblowers.
- Strengthening anti-gagging provisions in the law.
- Regulators should review the licence or registration of organisations which fail to have in place effective whistleblowing arrangements.
- Regulators should be more transparent about their own whistleblowing arrangements and annually report on their operations.
- Specialist training for tribunal members to handle whistleblowing claims effectively.
- Including protection for job applicants in all sectors, not just the NHS.
- Extending the scope of PIDA to include wider categories of workers including volunteers and interns, priests, foster carers, non-executive directors, public appointments, LLP members and all categories of workers listed under the Equality Act 2010.
- Broadening the scope of PIDA, especially with respect to gross mismanagement of funds and gross abuse of authority.
More information, including the report and the draft Code and details of the First 100 campaign, is available on the PCAW website.
Under Section 148 of the Small Business, Enterprise and Employment Act 2015 prescribed persons i.e. regulators are required to publish numbers and details of whistleblowing disclosures made to them each year ( this will need detailed secondary legislation).
National Health Service
Section 149 of the Small Business, Enterprise and Employment Act 2015 contains provisions giving the Secretary of State powers to make regulations preventing NHS employers treating job applicants less favourably or discriminating against them because they appear to have made a protected disclosure. This provision came into force on 26 May 2015.
This follows the Freedom to Speak Up review concerning treatment of whistleblowers in the NHS which that 29% of NHS staff feel unsure whether it is safe for them to raise a concern.
Within the NHS those who had blown the whistle may be victimised or bullied.For example a cardiologist, raised concerns about overcrowding in Coventry Hospital which resulted in the death of two patients. As a result he was bullied, suspended and subsequently dismissed. He won his unfair dismissal claim based on whistleblowing, so ensuring that whistleblowers are not discriminated against in the NHS seems particularly important and will be a source of future legal changes if organisations like PCAW are successful in persuading the government to further extend protection.
Extending the categories protected by PIDA
A wide range of categories of workers and employees are protected by PIDA and in most cases it will be clear which employees are included. From time to time either case law or legislation extends the categories of worker entitled to bring whistleblowing claims so that protection is given to those who would not otherwise be covered.For information on those currently covered see the related Q&A Which employees and workers are protected by the whistleblowing legislation and are they protected even if they made the disclosure whilst working for a previous employer?.
For example in 2015 student nurses and student midwives were expressly given protection by legislation and following earlier decisions of the Supreme Court (Clyde & Co LLP v Bates van Winklehof), members of LLPs were also found to be protected.
Other groups which may be given protection include:
- interns and consultants, and
- contractors and self-employed individuals employed through Construction Industry Schemes.
The government declined to legislate specifically for interns and consultants, taking the view they may be covered by PIDA already. For contractors and those engaged through Construction Industry Schemes the government confirmed this area of law will be kept under review. Employers should therefore watch for any future case law or consultations and bear in mind that other workers and individuals they engage with may be entitled whistleblowing protection.
Other developments are also expected to continue to arise from case law.