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 original piece of whistleblowing legislation was the Public Interest Disclosure Act 1998 (PIDA), 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.
The Department for Business, Energy and Industrial Strategy has produced guidance and a useful good practice code that employers should be aware of.
CIPD members can access our free confidential Whistleblower helpline which offers you support on whistleblowing matters.
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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 scandal in the 1990s or the Zeebrugge ferry disaster in 1987, may have been prevented if workers who knew about the dangers had not been too scared to blow the whistle and report wrongdoing. More recent scandals have included MPs' expenses and failings in various NHS trusts.
The provisions in the PIDA dealing with the definition of protected disclosure and the employment rights that arise from them have been inserted into the Employment Rights Act 1996 which also deals with claims in connection with making a protected disclosure.
Whistleblowing occurs when employees or workers raise a concern about organisational wrongdoing such as illegal or dishonest practices. Disclosures are only protected by the PIDA if they are made to the employee’s or worker’s employer or to ‘prescribed persons’, such as a regulatory body.
The Department for Business, Energy and Industrial Strategy (BEIS) has published a list of the prescribed bodies to whom employees and workers can make a protected disclosure.
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.
Some examples of the type of wrongdoing which could legitimately be raised by a whistleblower 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 2018
- medical negligence in a health care establishment
- payments in exchange for awarding contracts
- risks to the environment.
To be protected, the information supplied by the whistleblower must be properly based in fact and have sufficient detail in it to cover one of the types of wrongdoing referred to in the legislation. An opinion or an observation is unlikely to amount to a protected disclosure.
The whistleblower does not necessarily have to be directly personally affected by the danger or illegality. Whistleblowing that falls within the legal definition usually 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 a third party.
Employees whistleblowing about problems arising from their own employment contract is less likely to satisfy the public interest test (see In the public interest below) and, therefore, less likely to be protected.
Only certain kinds of disclosure qualify for protection under the PIDA. These are known as qualifying or protected disclosures and must relate to one of the following:
- 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.
The wrongdoing can have happened outside the UK.
An employee or worker must do more than express a belief that the employer’s actions are wrong. To be protected, a disclosure needs to actually set out an identifiable obligation that the employer has allegedly breached and the employee or worker must reasonably believe is that the disclosure shows a past or likely future wrongdoing
For example, in Kilraine v London Borough of Wandsworth (2018) the Court of Appeal said that the employee failed to disclose information with enough specific, factual content to show any malpractice of the types listed in the legislation. Furthermore some of the disclosures were out of date and the finding was that these were not the reason for her dismissal which was redundancy.
In another case, Eiger Securities v Korshunova (2016), the employer also managed to show that the employee was not protected as her disclosure did not show a breach of a legal obligation. She was a financial trader who had genuinely believed that various trading practices condoned in the organisation were wrong but these did not amount to a breach of a legal obligation.
Employers must ensure managers are aware that any employees or workers who make allegations may be whistleblowers and address concerns appropriately in accordance with a whistleblowing or dignity at work policy. However, if the employee cannot show that their disclosure falls within one of the six categories of wrongdoing listed above, the employer should have a defence to any claims.
In the public interest
An employer is not likely to be liable for a whistleblowing claim if they did not know of the protected disclosure when making an adverse decision against the whistleblower. Nevertheless the Employment Rights Act 1996 places liability on an employer that does not know of, or approve of, a detrimental act committed by a fellow worker following a whistleblower making a protected disclosure about them.
The Enterprise and Regulatory Reform Act 2013 changed various aspects of employment law, including amendments to the public disclosure section of the Employment Rights Act 1996, because there had been a series of cases where workers had gained whistleblowing protection for a disclosure which related solely to their own employment contract. (The leading case in this series was Parkins v Sodexho, 2002). To prevent this, the government changed the law in 2013 so that a 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 original requirement in law that a protected disclosure must be made ‘in good faith was removed in 2013.
- The majority of disclosures made about a breach of an employee's own employment contract are not covered by the whistleblower protection. Breaches of employees' own contracts of employment should be raised as a grievance in the usual way.
- Employment tribunals can 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. (Essentially this means that a lack of good faith is only taken into account at the compensation stage and not as part of proving the circumstances in which the whistleblowing took place.)
Case law examples
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.
In Chesterton Global Ltd v Nurmohamed (2017) a company director blew the whistle by complaining that his employer was overstating costs, thus driving down the bonuses for him and 100 other senior managers. The Court of Appeal held that because this type of disclosure could be in the public interest, it had passed that test.
In Underwood v Wincanton Plc (2015) 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 it was `at least possible` that a complaint relating to contract terms concerning only a group of workers could meet the public interest test.
In Morgan v Royal Mencap Society (2016), the EAT held that one individual employee's complaint about cramped working conditions could potentially be a protected disclosure for whistleblowing purposes.
If a case concerns a whistleblower’s dismissal, the employer must have known about the protected disclosure at the time the decision to dismiss was made. 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.
In the case of Royal Mail plc v Jhuti (2018) the Supreme Court ruled that an employee who was dismissed for poor performance could not argue that the real reason was that she had made a protected disclosure to her manager who had responded with reporting her alleged poor performance. The reason given by her employer for her dismissal was the only one known to the organisation and it could not be liable for matters it had no knowledge of.
Burden of proof
Under the Employment Rights Act 1996, there are two possible routes for a tribunal to decide if a dismissal was unfair. If a whistleblowing claim does not succeed, a tribunal may find there has been an ordinary unfair dismissal. For these claims, the qualifying period is two years and the successful claimant will have their compensation limited to the current cap on unfair dismissal compensation.
If the employee successfully claims they were dismissed for whistleblowing, this would be an automatic unfair dismissal (another category of dismissal in the Employment Rights Act 1996), for which they need no qualifying period of service and compensation is unlimited.
The burden of proof operates differently as well. In an ordinary unfair dismissal claim, it is for the employer to prove that the dismissal was fair. In a protected disclosure dismissal, the employer must show what the reason for the dismissal was.
The burden of proof is reversed for discrimination cases. If the claimant claims to have suffered a detriment for having made a protected disclosure, the employer has to disprove or displace that reason.
A wide range of regulators may get involved in whistleblowing cases, including:
- Financial Services Authority
- Health and Safety Executive
- Information Commissioner
- Care Quality Commission
- Pensions Regulator
- Food Safety Agency
In 2014 and 2016 the original list of regulators was extended. The new list includes MPs, specified Government ministers and public bodies, as well as about 60 regulators.
A regulator can become involved simply because the whistleblower contacts them directly; or because an employment tribunal may refer matters to them where the employee has indicated their consent to this on their tribunal claim (ET1) form. The procedure is designed to make it easier for regulators to access whistleblowing claims and give tribunals a more active policing role. Any investigation will be entirely independent from the outcome of the underlying tribunal case.
Points to consider:
- Most employers need not be concerned by whistleblowing claims - an employer that has acted properly concerning the protected disclosure should be absolved.
- If an employer has been involved in malpractice, 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.
- 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 have a defence provided they can prove an employee’s lack of belief that malpractice has taken place.
- 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.
Whistleblowing by sector
Regulations were introduced in 2018 which provide that a person cannot be discriminated against in applying for a job with the NHS on the basis that they may have previously made a protected disclosure. Similar provisions exist in the care sector.
The Financial Conduct Authority (FCA - formerly the Financial Services Agency) has been particularly concerned to encourage whistleblowing where appropriate in the financial services sector.
Following a significant increase in the number of whistleblowing reports being received by the FCA, a new whistleblowing regime was introduced in October 2015 designed to expand the scope of the previous rules and guidance on whistleblowing. The new regime is intended as non-binding guidance for all employers regulated by the FCA, including those to whom the rules do not apply fully.
More information, including the FCA rules on whistleblowing and guidance on making a disclosure, is available on the FCA website.
Guidance and codes of practice
The charity Protect (formerly known as Public Concern at Work) produced a whistleblowing code of practice in 2013 setting out good practice guidance for whistleblowing policies and how to handle whistleblowing complaints at work.
In 2015, the Department for Business, Energy and Industrial Strategy (BEIS) published guidance and a code of practice explaining employers’ responsibilities in this area. The code advises employers to:
- create an easily accessible and appropriately written whistleblowing policy
- make staff aware of the policy
- train managers on handling disclosures
- develop a culture which encourages employees and workers feel confident about making disclosures
- support those who do blow the whistle
- ensure settlement agreements don’t prevent workers from making disclosures.
In 2016, the government said it would review the BEIS code by the end of 2017, but this review did not take place and there is no current commitment to review the law on whistleblowing.
Having a whistleblowing policy may help employers 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.
Employers will need to keep updating the content, for example, checking that the list of ‘prescribed persons’ is up to date.
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, there are many good reasons for having a policy and it may help to prevent an issue escalating.
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, the UK Corporate governance code.
- Employers that operate a policy are less likely to be taken to an employment tribunal especially since the COVID-19 pandemic. The charity Protect states that enquiries were up by 20% in 2020 at nearly 4,000.
- If an employee is dismissed for making a qualifying disclosure, then it is an automatically unfair dismissal subject to certain conditions as outlined above. If there is a policy in place and the worker or employee 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 motive. An effective whistleblowing policy is therefore a factor that a tribunal will consider when deciding if a wider disclosure is reasonable and protected by the PIDA.
- Without a policy, workers may fear comeback and doubt the employer will deal with the matter properly.
- The costs of investigating any problems, such as fraud, will be reduced as problems can be caught quickly, thereby reducing management time and resources.
- It can help create a workplace where employees understand their responsibilities and management can demonstrate their accountability and take corrective action.
- 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 and an open and honest culture of honesty is good for internal morale.
Employers should bear in mind that although whistleblowing issues may not arise frequently, they should be prepared when they do. Therefore employers should:
- Ensure the whistleblowing policy is comprehensive and familiarise staff and managers with it.
- Keep an electronic or paper trail of any comments or grievances raised which may amount to qualifying disclosures.
- Treat even a troublesome individual's concerns seriously by checking if the worker properly put forward the disclosure as required, reasonably believes the disclosure is in the public interest and that one of the qualifying situations has occurred (such as a criminal offence, breach of any legal obligation, danger to the health and safety of any individual and so on).
It is important to remember that having a policy is more than an exercise in ticking boxes. The culture created by management must not be such that no-one feels able to speak up about problems. It is vital that management take a lead in promoting an open and accountable culture
The basis of whistleblowing law is that the discloser is 'protected' from unlawful actions in response to having blown the whistle. The whistleblower must reasonably believe the disclosure is in the public interest. Furthermore the disclosure should be made in the way set out in the legislation and by reference to one of the prescribed types of wrongdoing (see Qualifying disclosures).
Almost all workers and employees who ordinarily work in Great Britain are protected by the whistleblowing legislation although only employees can claim unfair dismissal if they are dismissed because of whistleblowing. Both employees and workers can make a claim for detrimental treatment under the Employment Rights Act 1996. The definition of ‘worker’ has a wider meaning for whistleblowing claims. Those 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 when facing whistleblowing claims that some individuals fall outside the legislation altogether, alleging that they are neither employees nor workers.
The armed forces, intelligence officers, House of Commons staff, most categories of merchant seamen, volunteers and the genuinely self-employed are not covered by whistleblowing legislation.
In Clyde and Co LLP v Bates Van Winkelhof (2014) the Supreme Court ruled that limited liability partnership (LLP) members are 'workers' for the purpose of whistleblowing protection. The employer argued that the claimant (who was an equity partner of a law firm) 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 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 one for whistleblowing. The Supreme Court decided 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).
In Day v Lewisham and Greenwich NHS Trust and Health Education England (2016, EAT) a junior doctor in training employed by the Trust had training placements arranged by Health Education England, an organisation which also paid part of his salary. The doctor made various disclosures to both organisations regarding patient safety which, he claimed, led to him suffering detrimental treatment and brought employment tribunal proceedings against the Trust and the training organisation. The claim against Health Education England was struck out as that relationship was well outside the category of employees and workers and was not protected.
Extending whistleblowing protection
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 example in 2015 student nurses and student midwives were expressly given protection by legislation and members of LLPs were also found to be protected following the decision of the Supreme Court in Clyde & Co LLP v Bates van Winklehof (2012).
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 has 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 may be entitled whistleblowing protection.
Note that the 2021 EU Workers Directive which will bring volunteers under protection will not be adopted by the UK Government because of Brexit.
There are no provisions in the Employment Rights Act 1996 limiting the territorial extent of employment and employers and employees who carry out all their work outside Great Britain can still bring claims of unfair dismissal here if there is a 'substantial connection' to this country. So employees working overseas, whose employment has a substantial connection with Great Britain, can be presumed to be covered by whistleblowing legislation and the behaviour that gives rise to a whistleblowing concern does not, therefore, have to take place in Britain.
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 Ravat v Halliburton Manufacturing and Services (2012) which refers to the leading case of Lawson v Serco Ltd, (2006) defining that an employee whose work takes them out of the UK will qualify for the right not to be unfairly dismissed.)
In another case from 2012, the first non-Japanese chief executive of Olympus, Michael Woodford, was dismissed just two weeks into his 44 month contract with the company. He had been the president of the company for six months before becoming its chief executive in October 2011. He could not bring a claim for unfair dismissal as he had not satisfied the one year’s continuous employment then required. However, he blew the whistle on the company regarding allegations of irregular financial dealings and fraud and was able to bring an automatic unfair dismissal claim because he had made a protected disclosure which requires no qualifying period of service. He was living and working in Japan when he submitted a claim to a UK employment tribunal and the company argued the tribunal had no jurisdiction to hear it. His claim was subsequently settled out of court so the jurisdictional issues arising in this case did not reach a court decision.
A worker can claim detrimental treatment because of making a protected disclosure even if the disclosure was made whilst working for a previous employer. In an unusual case, BP plc v Elstone (2010), 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 its confidential information. He started work again as a consultant to BP, but this contract was terminated when Petrotechnics told BP why it had dismissed him. The claimant was an employee and so was covered by the whistleblowing legislation, but the Employment Appeal Tribunal commented that had he been a job applicant he would not have been protected.
As well as claims for unfair dismissal and detriment, the following claims for whistleblowing may also arise.
Breach of human rights
Such claims are rare. 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 European Convention on Human Rights. (The Human Rights Act 1998 may be replaced or revised following Brexit).
For example, in a German case, Heinisch v Germany (2011), 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 and was awarded 15,000(Euros) for that claim. The European Court of Human Rights 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.
If whistleblowing claim is for a detriment, it must be presented to a tribunal within three months of the last act by the employer (subject to ACAS Early Conciliation extended time limits – for more information see our Tribunals claims, settlement and compromise Q&As). In some cases there may be a series of detrimental acts followed by the last act, which is 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 the time limit should be extended as it was not reasonably practicable to present the claim within three months of the act.
- In Unilever UK Plc v Hickinson (1) and Sodexho Ltd (2) (2009, the EAT found the claim was out of time. The employee suffered a detriment, which was removal from the site where he was working, followed by dismissal four weeks later. However the EAT found that there was no continuing detriment between those times. It is, therefore, important to identify the date the detrimental act complained of occurred to see if a claim has been brought in time.
The unique aspect about whistleblowing claims is that there is no upper limit on the amount of compensatory award available to employee whistleblowers who are unfairly dismissed for making a protected disclosure. The dismissal would be automatically unfair so the normal statutory maximum cap on compensation for unfair dismissal claims does not apply. To bring this type of unfair dismissal claim an employee does not need to satisfy the two years' service requirement.
Where the claim is for a detriment (which can be brought either by a worker or an employee) the tribunal can order compensation that is `just and equitable` (usually related to loss of earnings), make a declaration as to the rights of the individual, and also make an award for injury to feelings which is calculated in the same way as for discrimination claims by reference to the Vento bands (For more information, see our Tribunal claims, settlement and compromise Q&As).
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 (2011) 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.
In Lingard v HM Prison Service (2005) 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.
Employees may make claims of both detriment and dismissal which will increase the possible range of awards. Since 2013, awards can be uplifted or decreased by 25% by tribunals if the disclosure is not made ‘in good faith’.
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) as provided for in s47B of the Employment Right Act Under s47B the employer will have a defence to this type of claim if it can show it took all reasonable steps to prevent the detrimental conduct or any conduct of that description. .
An example of an employer managing to avoid vicarious liability comes from the case of NHS Manchester v Fecitt (2012) where 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.
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 but also stated that the circumstances surrounding his actions could well do so.
What are gagging clauses and are they effective to silence whistleblowers?
Gagging clauses, also called `non-disclosure agreements` or NDAs are usually associated with settling claims of discrimination and harassment. During 2019, but prior to the December election, there was considerable Governmental activity in relation to regulating these clauses. The government proposals included an intention to ensure that no provision in a confidentiality clause would prevent disclosure to the police, regulated health and care organisations or legal advisers. There was also an intention and to produce guidance for professionals on how to handle confidential matters in the context of employment contracts and settlements. As yet no legislation has been passed.
Non-disclosure agreements are used by many employers. They may be included in employment contracts and are commonly used in settlement agreements. The clause will state that the existence and the terms of the agreement are not to be made public by either party. Details can only be disclosed by the parties to legal and financial advisers and, in the employee’s case, to close family members. One reason behind this is to prevent a lucrative settlement payment becoming generally knowledge within the organisation and to prevent other employees from seeking a similar (but perhaps unwarranted) package for themselves. From the employee’s perspective, it can give them the opportunity of making ` a clean break`.
A gagging clause which seeks to prevent an individual from raising any concern protected under whistleblowing legislation is specifically excluded from settlement agreements under the Employment Rights Act 1996. Any employee who has signed a settlement agreement which does not make an exception for the whistleblowing legislation and who then makes a protected disclosure can rely on Act if the employer tries to recover any money specified in the agreement.
Although whistleblowing legislation has 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 settlement agreements must include a clause making it clear that nothing in the agreement will prevent an individual blowing the whistle or prevent people speaking out about patient safety or care. This is in addition to existing guidance which states:
- 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
- the Department of Health must sign off all special severance payments
- 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.
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), the employee may be able to establish a normal claim for unfair dismissal. 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 can be 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 (2013) 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 (2014) 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.