Whistleblowing The Legal Framework
Whistleblowing Protection
Whistleblowing protection at work in Great Britain is primarily provided through the Employment Rights Act 1996 (ERA 1996), as amended by the Public Interest Disclosure Act 1998 (PIDA 1998), but it also covers potential protection in contract, common law, and tort. This page discusses the benefits of whistleblowing protection in the workplace and the interplay between whistleblowing legislation and the law relating to confidentiality, including contractual confidentiality clauses and non-disparagement provisions.
Who is Protected Under Whistleblowing?
The scope of protection for those having made a protected disclosure goes far wider than the ordinary meaning of worker (under section 230(3) of the ERA 1996). The note also discusses areas of possible future legislative reform, as well as the provisions of the EU Whistleblowing Directive and how it might be applicable in the UK, albeit it will not be directly implemented here.
Automatic Unfair Dismissal
There are two levels of protection for whistleblowers: automatic unfair dismissal if the reason or principal reason for their dismissal is that they have made a "protected disclosure."
Detriment
Workers are also protected from being subjected to any detriment on the ground that they have made a protected disclosure (section 47B, ERA 1996). The definition of a "worker" for the purposes of protection from detriment is wider than that under ERA 1996 and includes employees and workers, as well as a wide range of other types of individual.
Qualifying Disclosure or Protected Disclosure
To qualify for protection, a whistleblower must satisfy several tests:
Have they made a qualifying disclosure? There are several requirements to be a qualifying disclosure: disclosure of information, subject matter of disclosure, reasonable belief, and in the public interest.
Is the qualifying disclosure protected? The disclosure must also be a protected disclosure, which broadly depends on the identity of the person to whom the disclosure is made. The legislative framework encourages disclosure to the worker's employer (internal disclosure) in the first instance, while disclosure to third parties (external disclosure) may be protected if more stringent conditions are met.
Making a Protected Disclosure
It is important that a Whistleblowing protected disclosure is drafted and pleaded in the right way to give you protection. You can look at our protected disclosure template to see what you must do. This is however a complicated and often confuses both an employee and a employer. I can help you professional produce a protected disclosure that will crate a protected act and help stop detriment. If the your employer still subjects you to detriment or a dismissal then this is a cause of action in the ET.
Claims Against Employer and Co-Workers
Automatically unfair dismissal claims may only be brought against the employer. Detriment claims may be brought against the employer or a co-worker, with the latter case having vicarious liability for the actions of any co-workers. There is no financial cap on compensation in whistleblowing claims and no requirement for a minimum period of service. These factors often mean that workers and employees tactically prefer to bring a whistleblowing claim rather than another type of claim, and the link between a particular complaint and a protected disclosure may sometimes be tenuous.
Before the introduction of PIDA 1998, there was limited legal recognition of an employee's right to disclose wrongdoing, including when they were bound by a duty of confidentiality. The courts had also developed a duty on employees in some cases to alert the employer to the wrongdoing of other employees. Public policy interest may override the duty of confidentiality, as seen in Gartside v Outram (1856) 26 LJ Ch 113.
There is no general legal duty on employees to disclose wrongdoing, although courts have developed the implied term of fidelity to impose a duty on employees with managerial or supervisory status to report the wrongdoing of others. However, the full extent of this duty is not clear, and employers have generally been reluctant to bring claims against innocent employees who fail to blow the whistle.
Health and Safety
Some specific statutory whistleblowing obligations include the obligation for workers to notify management of any risk to health and safety under regulation 14 of the Management of Health and Safety at Work Regulations 1999 (SI 1999/3242), and the duty of pension scheme trustees to notify the Pensions Regulator of certain matters under the Pensions Act 2004 (SI 1999/3242). There may also be express contractual obligations imposed through the employment contract, a code of conduct, or management instruction.
The EU Directive 2019/1937/EU on the protection of persons who report breaches of Union law (the Whistleblowing Directive) was published in the Official Journal on 26 November 2019. Member states had until 17 December 2021 to transpose the Directive into national law, although certain obligations did not come into force until 17 December 2023. The EU standard may come to be regarded by employers as best practice and will need to be taken into account by organizations maintaining a single, global whistleblowing framework.
In Rihan v Ernst and Young Global Ltd [2020] EWHC 901 (QB), a partner working in Dubai succeeded in a tortious negligence claim that his firm had breached a duty to take reasonable steps to prevent him from suffering financial loss by reason of its failure to perform an audit ethically and without professional misconduct.
Whistleblowing: Guidance for Employers and Code of Practice
In 2015, the Department for Business and Trade (DBT) published Whistleblowing: Guidance for Employers and Code of Practice, which outlines employers' responsibilities towards employees who blow the whistle. The BEIS Code of Practice emphasizes the importance of encouraging whistleblowing as a means of reporting wrongdoing and managing risks to organizations. Employers should make staff aware of an easily-accessible whistleblowing policy or written procedure, train them on how to make a disclosure, develop a culture where staff feel safe to make disclosures, undertake to protect the identity of a worker who makes a disclosure, offer support throughout, keep them informed about the timing of any action and the steps to be taken, and confirm that confidentiality clauses in settlement agreements will not prevent workers from making disclosures.
The government announced that the existing BEIS Code of Practice for employers on whistleblowing would be reviewed by the end of 2017, but this did not happen. Acas has produced non-statutory guidance, Whistleblowing at work, while the Whistleblowing Commission, established in 2013, produced a Whistleblowing Code of Practice. The British Standards Institution (BSI) published a non-statutory code of practice, Whistleblowing Arrangements (BS ISO 37002:2021). Whistleblowing legislation protects various individuals, including employees, workers, job applicants in the NHS, Crown employment, Parliamentary staff, members of the armed forces, and security services.
Who is a Worker for Whistleblowing?
A worker is defined by section 230(3) of the ERA 1996 as an individual who has entered into or worked under a contract of employment or any other contract, whether express or implied. The EAT rejected the argument that a wide definition should be given to "worker" in the context of whistleblowing due to the public interest at stake and the specific vulnerability of whistleblowers. In Uber BV v Aslam [2021] UKSC 5, Lord Leggatt specifically referred to the general purposes of employment legislation as including the protection of workers against "being victimised for whistleblowing".
In Clyde & Co LLP v Bates van Winkelhof [2014] UKSC 32, the Supreme Court confirmed that a former equity partner of a law firm incorporated as a limited liability partnership (LLP) was a worker under section 230(3) of the ERA 1996 and therefore eligible to bring a whistleblowing claim against the LLP. In Gilham v Ministry of Justice [2019] UKSC 44, the Supreme Court held that a District Judge, who was an office-holder, not a worker under the ERA 1996, was entitled to whistleblower protection.
Article 14 of the European Convention on Human Rights (ECHR) provides that the enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, color, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status. Since Article 14 only prohibits discrimination affecting the rights and freedoms set out in the ECHR, it can only be considered in the context of a claim raising a substantive ECHR right.
The case potentially has implications for other office-holders, such as non-executive directors, and other categories of individuals such as volunteers and trustees.
In MacLennan v British Psychological Society [2024] EAT 166, the EAT overturned an employment tribunal's decision that a charity trustee, who provided services without any contract, was barred from bringing a whistleblowing detriment claim because he was not a worker. The EAT found that the tribunal was wrong to interpret section 230(3)(b) of the ERA 1996 purposively to consider the trustee's ECHR rights, specifically those under Articles 10 and 14. The Supreme Court had set out four questions to establish a breach of convention rights: whether the facts fall within one of the ECHR rights, whether the claimant has been treated less favorably than others in an analogous situation, and whether the reason for that less favourable treatment is one of the listed grounds in Article 14 of the ECHR or "some other status."
The EAT believed that being a charity trustee is akin to an occupational status, as the nature of their role, responsibilities, and regulatory regime suggests such a status. The EAT remitted the case to reconsider these points but gave a strong steer that section 230(3)(b) of the ERA 1996 should be interpreted purposively to take account of an individual's ECHR rights for someone in Dr. MacLennan's position.
In Oni and others v London Borough of Waltham Forest and others ET/3204635/2021, an employment tribunal held that foster carers can bring whistleblowing claims despite not having contracts with local authorities. The tribunal considered itself bound by the Court of Appeal's decision in W v Essex County Council [1998] 3 WLR 534 (CA), which stated that foster carers could not rely on section 230 of the ERA 1996 to bring a whistleblowing claim.
Whistleblowing is a legal framework that protects individuals from detriment due to their protected disclosures. The ERA 1996 requires a contractual relationship between the worker and the entity to which work is supplied, which excludes certain groups such as job applicants, volunteers, interns, non-executive directors, and self-employed workers. In Sullivan v Isle of Wight Council [2025] EWCA Civ 379, the Court of Appeal held that the exclusion of job applicants from the whistleblowing detriment provisions was compatible with Article 14, read with Article 10, of the ECHR.
The court considered that a job applicant could have "other status" for the purpose of Article 14 of the ECHR, but it was not in a materially analogous position to either workers or applicants for NHS posts who were protected by the whistleblowing detriment provisions. The court held that any difference in treatment would have been objectively justified since it pursued a legitimate aim and the means adopted to achieve that aim were appropriate and proportionate.
In MacLennan v British Psychological Society [2024] EAT 166, the EAT considered whether a worker is protected from detriment for making a protected disclosure to their current employer prior to the commencement of their engagement. Section 47B of the ERA 1996 does not expressly require that the person making the disclosure was a worker when the disclosure was made. However, section 43C(1) (a) refers to a disclosure to "his employer," which might suggest that, in the case of disclosure to an employer, it must have been made while the person was a worker for the employer.
The Enterprise and Regulatory Reform Act 2013 (ERRA 2013) changed some of the categories of individual who are deemed by virtue of section 43K of the ERA 1996 to be a worker for whistleblowing purposes. This largely concerned contractors in various parts of the NHS who would not otherwise be workers. The Secretary of State was also given the power to add further categories to the definition of worker by statutory instrument, subject to affirmative resolution by Parliament.
Definition of a worker
The definition of a worker in the context of whistleblowing is extended to include agency workers and individuals supplied via an intermediary, provided that the terms are not set by the worker themselves. An equivalent extended definition of employer also applies, as stated in the ERA 1996. In Croke v Hydro Aluminium Worcester Ltd UKEAT/0238/05, the EAT held that section 43K(1)(a) covered a worker (Mr Croke) who was the director of his own personal service company, which contracted with an employment business to supply his services to a client (Hydro). The EAT advocated for tribunals to adopt a purposive construction when construing the extended definition of worker to provide protection rather than deny it.
The EAT examined section 43K(1)(a) of the ERA 1996 again in McTigue v University Hospital Bristol NHS Foundation Trust UKEAT/0354/15, holding that an employment tribunal had misinterpreted the definition and had wrongly concluded that an agency nurse supplied to an NHS Trust was not entitled to whistleblower protection against the Trust. To determine whether an individual is a worker with respect to any potential "employer" for the purposes of section 43K(1)(a), the EAT set out the following questions:
For whom does or did the individual work?
Is the individual a worker as defined by section 230(3) of the ERA 1996 in relation to a person or persons for whom the individual worked? If so, there is no need to rely on section 43K in relation to that person. However, the fact that the individual is a section 230(3) worker in relation to one respondent does not prevent the individual from relying on section 43K in relation to another respondent for whom the individual also works.
