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No 3 Whistle Blowing Laws

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  • No 3 Whistle Blowing Laws

    Part 1

    Blowing the Whistle on Workplace Wrongdoing

    Blowing the whistle is more formally known as 'making a disclosure in the public interest'. It is important you can do so knowing that you are protected from losing your job and/ or being victimised as a result of what you have uncovered and made public.

    Who is protected
    It is in the public interest that the law protects whistleblowers so that they can speak out if they find malpractice in an organisation.

    As a whistleblower you're protected from victimisation if you are:
    • a worker
    • revealing information of the right type by making what is known as a 'qualifying disclosure'
    • revealing it to the right person, and in the right way making it a 'protected disclosure'
    'Worker' has a special and wide meaning for these protections. As well as employees it includes agency workers and people who aren't employed but are in training with employers. Student nurses and student midwives doing work experience as part of an education course or training approved by, or under arrangements with, the Nursing and Midwifery Council also fall within the meaning of worker for these protections.Where protection applies

    Qualifying disclosures
    To be protected, you need to make a qualifying disclosure. You need to reasonably believe that the disclosure is being made in the public interest and that malpractice in the workplace is happening, has happened or will happen. Disclosures which can be characterised as being of a personal rather than public interest, will not be protected.

    The types of malpractice the law covers are:
    • criminal offences
    • failure to comply with a legal obligation
    • miscarriages of justice
    • threats to people's health and safety
    • damage to the environment

    The law also covers a deliberate attempt to cover-up any of these. It is important to remember, however, that you may not be protected if you break another law in blowing the whistle.

    For example, if you've signed the Official Secrets Act as part of your employment contract.

    Protected disclosures
    For your disclosure to be protected by the law, you must make it to the right person and in the right way. If you make a qualifying disclosure in good faith to your employer, or through procedures which your employer has authorised, the law protects you.

    You can also complain to the person who is responsible for the area that is of concern to you. For example, you might raise concerns about health and safety with your health and safety representative.

    For a disclosure to a 'prescribed person' to be protected, you must fulfil the following requirements:
    • reasonably believe that the information is substantially true
    • reasonably believe you are making the disclosure to the right 'prescribed person'
    In certain circumstances you can also make disclosures to others. These include disclosures:
    • to your legal adviser
    • to a government minister
    • 'in other cases' to others such as a professional standards body, for example

    However, there are different sets of rules as to when each of these disclosures will be protected. For example, the rules covering disclosures 'in other cases' are extremely strict, among other things, you must not be acting for personal gain.

    If you are unsure, you should always get professional advice before you go ahead and make a disclosure. You should remember that anything you say to a legal adviser in order to get advice is automatically protected.
    Blowing the whistle

    If you want to complain about malpractice at work you should follow any procedure set down by your employer (this will often be found in your employer's grievance procedure).

    If you belong to a trade union, you can get advice from your union representative.

    If you're complaining about a health and safety issue, you can speak to your safety representative if you have one.
    If you are blowing the whistle on malpractice or wrongdoing in the workplace you should make the disclosure (reveal the information) to your employer or to 'a prescribed person' so that your employment rights are protected.
    Blowing the whistle to your employer

    If you're blowing the whistle on malpractice in the workplace you should strongly consider making the disclosure to your employer. If you make a disclosure to your employer it will help to make sure that your concerns are dealt with quickly and by the right person.

    If you work for a small company, the right person to resolve your concerns may be the owner or a director of the company.

    You should check your employment contract to see if your company has a process to help you make the disclosure. In some situations your employer might adapt the procedure, for example to allow confidential disclosures.
    Blowing the whistle to a prescribed person

    If you feel unable to use your company's disclosure procedure then there are other prescribed people you can make the disclosure to.

    You can only make a disclosure to a prescribed person if you:Blowing the whistle to your legal advisor
    While you are getting legal advice from a legal adviser you may disclose information about wrongdoing at your work which would be a protected disclosure.
    Blowing the whistle to a government minister

    If you are employed in the public sector you may disclose information about wrongdoing to a minister.
    Blowing the whistle to others

    If you are making a disclosure to someone not listed above, then it will only be protected if you:
    • reasonably believe that the information is substantially true
    • do not act for personal gain
    • act reasonably taking into account the circumstances

    In addition, to make a protected disclosure to others you must either:
    • reasonably believe your employer would treat you unfairly if you made the disclosure to your employer or a prescribed person
    • reasonably believe that your disclosure to the employer would result in the destruction or concealment of information about the wrongdoing
    • have previously disclosed the same or very similar information to your employer or a prescribed person

    An Industrial Tribunal must also think it was reasonable for you to make the disclosure. The Industrial Tribunal will take into account:
    • the identity of the person you made the disclosure to (for example, disclosing to a relevant professional body may be more likely to be considered reasonable than to the media)
    • the seriousness of the wrongdoing
    • whether the wrongdoing is continuing or likely to occur again
    • whether your disclosure breaches your employer's duty of confidentiality (for example, if information you made available contains confidential details about a client)
    • if you made a previous disclosure, whether you followed any internal procedures then, and your employer's action that followed your previous disclosure
    Blowing the whistle for exceptional failure
    If you believe you are blowing the whistle on an exceptionally serious failure in a workplace you do not need to go through the normal channels and can publicly blow the whistle straight away.

    It is not enough for something to be an exceptionally serious failure in your opinion alone (for example, if you don't agree with a working practice). It must be a matter of fact that something is a genuinely serious failure. An example could be an exceptionally serious health and safety risk that is putting workers' lives at risk.

    The conditions given for blowing the whistle to others will not apply, if you:
    • reasonably believe that the information is substantially true
    • do not act for personal gain
    • act reasonably taking into account the circumstances
    If you’re sacked for whistleblowing

    Early conciliation
    Following a change in employment law, from 27 January 2020, if you want to make a claim with the Industrial or Fair Employment Tribunal, you must first tell the Labour Relations Agency (LRA) and discuss the option of early conciliation. You can’t go to tribunal without at least considering this option.

    If you’re an employee covered by the whistleblowing protections and you're sacked for complaining about malpractice at work, you can make a claim for unfair dismissal. You don't need to have the normal one year’s service to do this.

    If you're not an employee, but are covered by the whistleblowing protections and have a contract that's terminated for whistleblowing; you can take your case to an Industrial Tribunal and claim that you have suffered 'detrimental treatment'.

    If you're covered by the whistleblowing protections and you've been victimised (for example, demoted, been denied training opportunities or promotion) for whistleblowing you can take your case to an Industrial Tribunal, claiming that you have suffered 'detrimental treatment'.

    If you're subjected to a detriment by a co-worker in the course of that co-worker’s employment with your employer, on the ground that you made a protected disclosure, you may be able to take a case to an Industrial Tribunal against both your employer and the co-worker.
    Attached Files

  • #2
    Part 2

    Where to get help

    Further information and guidance is available at the link below:
    Making a public disclosure is a serious matter and if you are unsure, you should get professional advice before making a disclosure.
    Public Concern at Work(external link opens in a new window / tab) is an independent organisation that could give you free advice if you are not sure if you should raise a concern about workplace malpractice or how to raise your concern.

    The Labour Relations Agency (LRA) offers free, confidential and impartial advice on all employment rights issues.