Blowing The Whistle

A successful claim under the whistleblowing legislation can result in unlimited compensation, compensation for injury to feelings and, importantly, there is not a length of service requirement.

There has been some doubt in the past as to what would constitute a disclosure with the tribunals and courts being asked to decide whether grievances, solicitors’ letters and a series of emails amount to a disclosure. However, at the heart of this issue is whether the worker has disclosed “information”. The Court of Appeal has now provided some welcomed clarity in the case of Kilraine v London Borough of Wandsworth [2018] EWCA Civ 1436.

Who is protected?

Before we consider what constitutes a disclosure, it’s worth remembering that whistleblowing protection extends to a broad category of individuals including employees, workers (that category falling between employee and self-employed status which is so prevalent in the gig economy), and the following:

-Homeworkers;

-Non-employees undergoing training or work experience as part of a training course;

-Self-employed doctors and dentists in the NHS;

-Agency workers;

-Police officers; and

-Student nurses and student midwives.

What disclosures are covered?

A worker will be protected if they make a qualifying disclosure. This then becomes a protected disclosure if, broadly speaking, it is made to the right person (usually the employer).

A qualifying disclosure is any disclosure of information which, in the reasonable belief of the worker making the disclosure, tends to show one or more of the following has taken place, is taking place or is likely to take place:

-a criminal offence;

-a breach of any legal obligation;

-a miscarriages of justice;

-the health and safety of any individual being endangered; environmental damage;

-or the deliberate concealing of information about any of the above.

Importantly, whether the worker has a reasonable belief is a subjective test; they do not have to prove that the information disclosed is true or that it falls within one of the above categories.

Since 25 June 2013, a worker must also reasonably believe (at the time of making the disclosure) that it is in the public interest.

What constitutes “information”?

In a 2010 case the Employment Appeal Tribunal appeared to suggest that there was a distinction between a worker making allegations and disclosing information with the former not amounting to a qualifying disclosure.

The Court of Appeal has now clarified that what is key is the disclosure of facts. This may be done as part of an allegation and “allegations” and “information” are not mutually exclusive. What matters is that there is sufficient factual content and specificity for it to tend to show one or more of the categories. The context in which a statement is made will also be relevant and could transform a statement that lacks sufficient information into a disclosure. For example, a statement that an employer is breaching health and safety requirements would not ordinarily amount to a qualifying disclosure, but would do so if accompanied by the worker pointing at cables constituting a trip hazard. Accordingly, managers need to be aware of considering fully the facts and information being disclosed taking into account the whole circumstances and not considering statements in isolation.

What should employers do?

Employers should ensure they have a whistleblowing policy in place which is easily-accessible. Staff should also be trained on how to make a disclosure and, crucially, managers should be trained on how to both recognise and deal with a disclosure. Above all, a worker should not be subjected to a detriment for making a disclosure. Where a disclosure is made in the context of a grievance or disciplinary issue, it is worth taking advice.