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Whistleblowing - overview
The Public Interest Disclosure Act 1998 ('PIDA 1998') protects workers who make 'protected disclosures' from dismissal, selection for redundancy or from being subject to a detriment, such as the refusal of a pay increase or promotion or other forms of victimisation. PIDA 1998 provides a wide category of 'qualifying disclosures' relating to types of malpractice and stipulates that to be a 'protected disclosure' the employee must make the disclosure in the accepted way. PIDA 1998 was implemented by amendments to the Employment Rights Act 1996 and complaints arising under PIDA 1998 are dealt with by the employment tribunals. Whistleblowing represents an exception to the employees' normal duty of confidentiality.
Protected disclosure
Any whistleblowing claim must have as its foundation a 'protected disclosure'. This is:
a disclosure of information about certain types of wrongdoing (a 'qualifying disclosure'), including criminal offences, failing to comply with legal obligations, miscarriages of justice, endangerment of health or safety, damage to the environment, or deliberate concealment of any of these things
made in good faith to the worker's employer (or in some circumstances to another individual responsible for the wrongdoing), or made in the course of obtaining legal advice, or in certain circumstances made to a Minister of the Crown, relevant regulatory authority or in exceptional circumstances to other bodies or persons, subject to a variety of conditions being met
For more information on the characteristics of disclosures, qualifying disclosures and when disclosures are protected, see Protected disclosure.
Who can claim
No qualifying period of employment or work is needed before an individual may bring a claim.
All workers may bring claims for whistleblowing detriment: this includes anyone under a contract of employment, or any other contract under which one person provides work personally to another person who is not a client or customer of his own business. This includes agency workers, home workers, medics, dentists, opthalmologists, pharmacists, those on work experience or employment training and Crown employees. Protection extends after the contract terminates.
Only employees (ie those employed under a contract of service) may bring whistleblowing unfair dismissal claims. Workers may instead bring detriment claims about dismissals for whistleblowing, although the available remedies will be different.
Employees in the Security Service, the Secret Intelligence Service, GCHQ, House of Lords and House of Commons staff may bring whistleblowing unfair dismissal claims but may not bring claims for detriment whilst in employment. Some, but not all, merchant seamen are wholly excluded from protection.
For more information, see Entitlement to claim whistleblowing.
Claims
There are two types of whistleblowing claims:
claims for whistleblowing unfair dismissal, which may be brought only by employees (who acquire the protection from the first day of their employment)
claims for whistleblowing detriment, which may be brought by any worker
An employee who can show that the principal reason for his dismissal was that he made a protected disclosure will be automatically unfairly dismissed. All normal unfair dismissal remedies will be available (subject to special rules on compensation).
Workers will succeed in a whistleblowing detriment claim where the tribunal accepts that the worker was subjected to a detriment arising from an act or omission of the employer, which was done on the grounds that the worker made a protected disclosure.
A detriment is suffered where a reasonable worker might take the view that the act or omission has in some way disadvantaged him in the circumstances in which he has to work.
To prove causation, it is necessary to show that the fact that the protected disclosure had been made caused or influenced the employer to act (or not act) in the way complained of. The burden is on the employer to show the grounds on which the act or omission occurred.
Time limits and any extensions to them for unfair dismissal whistleblowing claims are exactly the same as for other unfair dismissal claims. The basic time limit for whistleblowing detriment claims is three months. Omissions are treated as done when someone decided upon it, which may be when they did something inconsistent with doing the omitted act, or at the end of the period within which they might reasonably have been expected to do the omitted act. Continuing acts are treated as done at the end of the period over which they extend, subject to the same principles as apply in discrimination claims. With series of acts or omissions, time runs from the last of them. The basic time limit may be extended where it was not reasonably practicable for the claim to be presented within three months - applying the same principles as in unfair dismissal claims.
For further details, see Types of whistleblowing claim.
Defences and exceptions
A whistleblowing claim will fail if it can be shown that:
given the information available to the worker at the time the decision to disclose was made, it was not reasonable for him to believe that it tended to show one of the listed types of wrongdoing
the claimant would commit an offence by disclosing the information, or the claimant learnt the information whilst obtaining legal advice, and the information is privileged
the claimant is making the disclosure in bad faith (except qualifying disclosures made in the course of obtaining legal advice). Disclosures made through a desire to pursue a personal vendetta or grudge will not be protected, even if the disclosure is true. Disclosures for benign public interest reasons will be considered to be in good faith
(in some cases) the claimant did not believe that the actual facts of the disclosure are substantially true, or that it was not reasonable for them to believe that
(in some cases) the claimant made the disclosure for purposes of personal gain
(in some cases) it was not reasonable to make a disclosure at all in the circumstances, taking into account factors such as the identity of the person to whom the disclosure was made, the seriousness of what is alleged, whether the wrongdoing is likely to recur etc
the disclosure is made to an obviously inappropriate regulatory authority
the disclosure is made to third parties not expressly covered by the provisions, do not relate to exceptionally serious wrongdoing and the worker cannot demonstrate either:
that he would be treated badly if he instead made the disclosure to his employer, or
that information would be concealed or destroyed if he instead told his employer and there is no appropriate regulatory authority to whom it could be reported instead, or
that he previously made a disclosure of substantially the same information to his employer, or to the relevant regulatory authority
For more information, see Whistleblowing defences and exceptions.
Remedies
Where an employee succeeds in a claim for unfair dismissal in which the tribunal accepts that the principal reason he was dismissed was that he made a protected disclosure, he will be entitled to remedies (reinstatement, re-engagement, basic award, compensatory award) according to all the usual principles which apply in any unfair dismissal claim. Dismissal in such cases is automatically unfair, and the compensatory award is not subject to any statutory limit.
Where a worker succeeds in a claim for whistleblowing detriment, the tribunal must make a declaration to the effect that the claimant was subjected to a detriment by the act or omission of his employer, done on the ground that he made a protected disclosure.
The tribunal may also, if it chooses, award compensation. The amount will depend on what the tribunal considers just and equitable. An award for injury to feelings may be made, the size of which should be assessed on the same (Vento) principles as in discrimination claims. Aggravated and exemplary damages awards are in principle available, following the same principles as with discrimination claims. The tribunal must include any expenses and loss of benefits in the compensation awarded. The claimant is under the usual duty to mitigate his losses, and an appropriate reduction may be made for contributory fault on the part of the claimant.
For more information, see Whistleblowing remedies.
Effect on contractual duties of confidentiality
PIDA 1998 represents an exception to an employee's normal duty of confidentiality. Any provision in an agreement is void in so far as it purports to prevent a worker making a protected disclosure. This includes any agreement whereby the worker agrees not to take proceedings against the employer under the Employment Rights Act 1996 or for breach of contract.
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