Protected Disclosure (Whistleblowing)
Understanding the Significance of Proper Whistleblowing: The Critical Importance of Properly Making a Protected Disclosure Statement
What is a Protected Disclosure?
Whistleblowing serves a vital public interest by allowing individuals to report wrongdoing, malpractice, or failures in the workplace. However, for a whistleblower to receive legal protection against detriment or unfair dismissal, their disclosure must meet specific statutory requirements to be considered a "protected disclosure". Improperly making a disclosure can lead to a whistleblower losing their legal protections, even if their intentions are good.
What Makes a Disclosure "Qualifying"?
The first step for a disclosure to be protected is that it must be a "qualifying disclosure". This involves several key elements:
Disclosure of Information - The communication must convey facts, not merely voice a concern or raise an allegation without sufficient factual content. While an allegation or opinion can sometimes constitute information if it has enough factual specificity or is understood within a clear context, a vague statement or a simple question might not qualify. A disclosure can involve new information or drawing attention to existing knowledge.
Reasonable Belief about Wrongdoing -The worker must have a reasonable belief that the information tends to show one of six specific types of malpractice, wrongdoing, or failure. These categories are broad and include criminal offences, breach of legal obligation, miscarriages of justice, danger to health and safety, environmental damage, or the deliberate concealment of information about any of these. It is crucial that the belief is reasonable, even if the facts later turn out to be incorrect. Those with professional or "insider" knowledge are held to a higher standard regarding what is reasonable for them to believe.
Reasonable Belief in the Public Interest - The worker must also have a reasonable belief that the disclosure is made in the public interest. This test aims to prevent private workplace disputes from attracting whistleblowing protection. When assessing "public interest," tribunals consider factors such as:
The number of people affected by the disclosure.
The nature and extent of the interests affected by the wrongdoing.
The nature of the alleged wrongdoing, with deliberate wrongdoing being more likely to be in the public interest.
The identity of the alleged wrongdoer, particularly if they are a large or prominent entity. Even if a disclosure concerns a worker's own contract, it can still be deemed to be in the public interest if other factors are present.
Who to Disclose To for Protection
Once a disclosure is "qualifying," its protection status also depends on who the disclosure is made to. The legal framework encourages internal disclosure first.
Internal Disclosure (to Employer) - Disclosure to one's employer is generally the most straightforward path to protection. This can include a senior person with authority over the worker, or a third party authorized by the employer's whistleblowing procedure.
Responsible Persons - A qualifying disclosure can be made to a "responsible person" (e.g., a client of the worker's employer) if the malpractice solely or mainly relates to that person's conduct or legal responsibility.
Legal Advisers - Disclosures made to legal advisers in the course of obtaining legal advice are protected.
Government Ministers - Disclosures to Government Ministers are protected for workers employed by certain statutory bodies.
Prescribed Persons - Disclosures to specific "prescribed persons" (e.g., HMRC, ICO, FCA, HSE, Charity Commission) are protected if the worker reasonably believes the wrongdoing falls within their remit and the information is substantially true. Members of Parliament (MPs) are also prescribed persons for matters within the remit of other prescribed persons.
Wider Disclosure (e.g., to Media, Police) - These are subject to rigorous conditions and are protected only in very limited circumstances. In addition to the "reasonable belief" and "public interest" tests, the worker must:
Reasonably believe the information is substantially true.
Not make the disclosure for personal gain.
Have previously disclosed substantially the same information to their employer or a prescribed person, or reasonably believe they would suffer detriment or that evidence would be concealed/destroyed if they disclosed internally first.
It must be reasonable in all circumstances to make the wider disclosure, considering factors like the seriousness of the default, whether it's continuing, and whether an internal procedure was followed. Disclosure to the media is particularly difficult to justify as reasonable.
Why Proper Disclosure is Paramount
Failure to adhere to these requirements can have severe consequences for the whistleblower:
Loss of Statutory Protection - If a disclosure does not meet the "qualifying" and "protected" criteria, the individual will not be considered a whistleblower under the law and will not be protected from detriment or automatically unfair dismissal. This means any retaliatory action by the employer might not be unlawful.
Difficulty Proving Causation - In legal claims, the whistleblower must prove that their protected disclosure was the reason (or principal reason) for dismissal or materially influenced the detriment suffered. A poorly articulated or undocumented disclosure makes this causal link much harder to establish.
Separability of Misconduct - Employers may argue that they took action due to the manner of the disclosure (misconduct), rather than the disclosure itself. For example, hacking into systems to obtain evidence is not protected, even if the underlying concern is legitimate. If the misconduct is separable from the protected disclosure, the whistleblower could face disciplinary action without legal recourse.
Credibility Issues in Tribunals - Clear, concise, and well-documented disclosures enhance a whistleblower's credibility in legal proceedings. Vague pleadings or inconsistent accounts can lead to costly requests for further information, applications to strike out claims, or deposit orders, which increase the burden on the whistleblower.
Breach of Confidentiality - While protected disclosures are legally exempt from confidentiality clauses, disclosures that do not meet the protected criteria could still amount to a breach of contractual or implied duties of confidentiality, leaving the individual vulnerable to legal action.
Time Limit Challenges: The clarity of when and what information was disclosed is vital for determining if a claim is brought within the strict three-month time limits for tribunal claims.
Practical Advice for Whistleblowers
To maximise the chances of a disclosure being protected, consider the following:
Document Everything - Where possible, make disclosures in writing to create a clear record of the content and date. If made orally, follow up in writing.
Be Specific and Factual - Ensure the disclosure conveys concrete information and facts, avoiding mere allegations or opinions without supporting detail.
Identify the Wrongdoing Clearly - State which type of wrongdoing or failure (e.g., criminal offence, health and safety risk, breach of legal obligation) the information tends to show.
Consider the Public Interest - Reflect on why the disclosure is in the public interest, beyond personal grievances.
Choose the Right Recipient - Always refer to internal whistleblowing policies first. Prioritise disclosing to the employer, or a prescribed person. Wider disclosures should only be considered as a last resort, and only if the strict statutory conditions are met.
Avoid Misconduct - Do not engage in actions (e.g., hacking, unauthorized access to information) that could be seen as misconduct, even in an attempt to gather evidence.
Keep Personal Records - Maintain a private record of all relevant correspondence and conversations related to the disclosure.
Seek Independent Legal Advice - Given the complexity, consulting with a legal adviser early can ensure the disclosure is made properly and that the whistleblower understands their rights and risks.
By carefully following these guidelines, and our template whistleblowers can significantly strengthen their position and ensure their important disclosures are legally protected.
Understanding the Significance of Proper Whistleblowing: The Critical Importance of Properly Making a Protected Disclosure Statement
What is a Protected Disclosure?
Whistleblowing serves a vital public interest by allowing individuals to report wrongdoing, malpractice, or failures in the workplace. However, for a whistleblower to receive legal protection against detriment or unfair dismissal, their disclosure must meet specific statutory requirements to be considered a "protected disclosure". Improperly making a disclosure can lead to a whistleblower losing their legal protections, even if their intentions are good.
What Makes a Disclosure "Qualifying"?
The first step for a disclosure to be protected is that it must be a "qualifying disclosure". This involves several key elements:
Disclosure of Information - The communication must convey facts, not merely voice a concern or raise an allegation without sufficient factual content. While an allegation or opinion can sometimes constitute information if it has enough factual specificity or is understood within a clear context, a vague statement or a simple question might not qualify. A disclosure can involve new information or drawing attention to existing knowledge.
Reasonable Belief about Wrongdoing -The worker must have a reasonable belief that the information tends to show one of six specific types of malpractice, wrongdoing, or failure. These categories are broad and include criminal offences, breach of legal obligation, miscarriages of justice, danger to health and safety, environmental damage, or the deliberate concealment of information about any of these. It is crucial that the belief is reasonable, even if the facts later turn out to be incorrect. Those with professional or "insider" knowledge are held to a higher standard regarding what is reasonable for them to believe.
Reasonable Belief in the Public Interest - The worker must also have a reasonable belief that the disclosure is made in the public interest. This test aims to prevent private workplace disputes from attracting whistleblowing protection. When assessing "public interest," tribunals consider factors such as:
The number of people affected by the disclosure.
The nature and extent of the interests affected by the wrongdoing.
The nature of the alleged wrongdoing, with deliberate wrongdoing being more likely to be in the public interest.
The identity of the alleged wrongdoer, particularly if they are a large or prominent entity. Even if a disclosure concerns a worker's own contract, it can still be deemed to be in the public interest if other factors are present.
Who to Disclose To for Protection
Once a disclosure is "qualifying," its protection status also depends on who the disclosure is made to. The legal framework encourages internal disclosure first.
Internal Disclosure (to Employer) - Disclosure to one's employer is generally the most straightforward path to protection. This can include a senior person with authority over the worker, or a third party authorized by the employer's whistleblowing procedure.
Responsible Persons - A qualifying disclosure can be made to a "responsible person" (e.g., a client of the worker's employer) if the malpractice solely or mainly relates to that person's conduct or legal responsibility.
Legal Advisers - Disclosures made to legal advisers in the course of obtaining legal advice are protected.
Government Ministers - Disclosures to Government Ministers are protected for workers employed by certain statutory bodies.
Prescribed Persons - Disclosures to specific "prescribed persons" (e.g., HMRC, ICO, FCA, HSE, Charity Commission) are protected if the worker reasonably believes the wrongdoing falls within their remit and the information is substantially true. Members of Parliament (MPs) are also prescribed persons for matters within the remit of other prescribed persons.
Wider Disclosure (e.g., to Media, Police) - These are subject to rigorous conditions and are protected only in very limited circumstances. In addition to the "reasonable belief" and "public interest" tests, the worker must:
Reasonably believe the information is substantially true.
Not make the disclosure for personal gain.
Have previously disclosed substantially the same information to their employer or a prescribed person, or reasonably believe they would suffer detriment or that evidence would be concealed/destroyed if they disclosed internally first.
It must be reasonable in all circumstances to make the wider disclosure, considering factors like the seriousness of the default, whether it's continuing, and whether an internal procedure was followed. Disclosure to the media is particularly difficult to justify as reasonable.
Why Proper Disclosure is Paramount
Failure to adhere to these requirements can have severe consequences for the whistleblower:
Loss of Statutory Protection - If a disclosure does not meet the "qualifying" and "protected" criteria, the individual will not be considered a whistleblower under the law and will not be protected from detriment or automatically unfair dismissal. This means any retaliatory action by the employer might not be unlawful.
Difficulty Proving Causation - In legal claims, the whistleblower must prove that their protected disclosure was the reason (or principal reason) for dismissal or materially influenced the detriment suffered. A poorly articulated or undocumented disclosure makes this causal link much harder to establish.
Separability of Misconduct - Employers may argue that they took action due to the manner of the disclosure (misconduct), rather than the disclosure itself. For example, hacking into systems to obtain evidence is not protected, even if the underlying concern is legitimate. If the misconduct is separable from the protected disclosure, the whistleblower could face disciplinary action without legal recourse.
Credibility Issues in Tribunals - Clear, concise, and well-documented disclosures enhance a whistleblower's credibility in legal proceedings. Vague pleadings or inconsistent accounts can lead to costly requests for further information, applications to strike out claims, or deposit orders, which increase the burden on the whistleblower.
Breach of Confidentiality - While protected disclosures are legally exempt from confidentiality clauses, disclosures that do not meet the protected criteria could still amount to a breach of contractual or implied duties of confidentiality, leaving the individual vulnerable to legal action.
Time Limit Challenges: The clarity of when and what information was disclosed is vital for determining if a claim is brought within the strict three-month time limits for tribunal claims.
Practical Advice for Whistleblowers
To maximise the chances of a disclosure being protected, consider the following:
Document Everything - Where possible, make disclosures in writing to create a clear record of the content and date. If made orally, follow up in writing.
Be Specific and Factual - Ensure the disclosure conveys concrete information and facts, avoiding mere allegations or opinions without supporting detail.
Identify the Wrongdoing Clearly - State which type of wrongdoing or failure (e.g., criminal offence, health and safety risk, breach of legal obligation) the information tends to show.
Consider the Public Interest - Reflect on why the disclosure is in the public interest, beyond personal grievances.
Choose the Right Recipient - Always refer to internal whistleblowing policies first. Prioritise disclosing to the employer, or a prescribed person. Wider disclosures should only be considered as a last resort, and only if the strict statutory conditions are met.
Avoid Misconduct - Do not engage in actions (e.g., hacking, unauthorized access to information) that could be seen as misconduct, even in an attempt to gather evidence.
Keep Personal Records - Maintain a private record of all relevant correspondence and conversations related to the disclosure.
Seek Independent Legal Advice - Given the complexity, consulting with a legal adviser early can ensure the disclosure is made properly and that the whistleblower understands their rights and risks.
By carefully following these guidelines, and our template whistleblowers can significantly strengthen their position and ensure their important disclosures are legally protected.
Understanding the Significance of Proper Whistleblowing: The Critical Importance of Properly Making a Protected Disclosure Statement
What is a Protected Disclosure?
Whistleblowing serves a vital public interest by allowing individuals to report wrongdoing, malpractice, or failures in the workplace. However, for a whistleblower to receive legal protection against detriment or unfair dismissal, their disclosure must meet specific statutory requirements to be considered a "protected disclosure". Improperly making a disclosure can lead to a whistleblower losing their legal protections, even if their intentions are good.
What Makes a Disclosure "Qualifying"?
The first step for a disclosure to be protected is that it must be a "qualifying disclosure". This involves several key elements:
Disclosure of Information - The communication must convey facts, not merely voice a concern or raise an allegation without sufficient factual content. While an allegation or opinion can sometimes constitute information if it has enough factual specificity or is understood within a clear context, a vague statement or a simple question might not qualify. A disclosure can involve new information or drawing attention to existing knowledge.
Reasonable Belief about Wrongdoing -The worker must have a reasonable belief that the information tends to show one of six specific types of malpractice, wrongdoing, or failure. These categories are broad and include criminal offences, breach of legal obligation, miscarriages of justice, danger to health and safety, environmental damage, or the deliberate concealment of information about any of these. It is crucial that the belief is reasonable, even if the facts later turn out to be incorrect. Those with professional or "insider" knowledge are held to a higher standard regarding what is reasonable for them to believe.
Reasonable Belief in the Public Interest - The worker must also have a reasonable belief that the disclosure is made in the public interest. This test aims to prevent private workplace disputes from attracting whistleblowing protection. When assessing "public interest," tribunals consider factors such as:
The number of people affected by the disclosure.
The nature and extent of the interests affected by the wrongdoing.
The nature of the alleged wrongdoing, with deliberate wrongdoing being more likely to be in the public interest.
The identity of the alleged wrongdoer, particularly if they are a large or prominent entity. Even if a disclosure concerns a worker's own contract, it can still be deemed to be in the public interest if other factors are present.
Who to Disclose To for Protection
Once a disclosure is "qualifying," its protection status also depends on who the disclosure is made to. The legal framework encourages internal disclosure first.
Internal Disclosure (to Employer) - Disclosure to one's employer is generally the most straightforward path to protection. This can include a senior person with authority over the worker, or a third party authorized by the employer's whistleblowing procedure.
Responsible Persons - A qualifying disclosure can be made to a "responsible person" (e.g., a client of the worker's employer) if the malpractice solely or mainly relates to that person's conduct or legal responsibility.
Legal Advisers - Disclosures made to legal advisers in the course of obtaining legal advice are protected.
Government Ministers - Disclosures to Government Ministers are protected for workers employed by certain statutory bodies.
Prescribed Persons - Disclosures to specific "prescribed persons" (e.g., HMRC, ICO, FCA, HSE, Charity Commission) are protected if the worker reasonably believes the wrongdoing falls within their remit and the information is substantially true. Members of Parliament (MPs) are also prescribed persons for matters within the remit of other prescribed persons.
Wider Disclosure (e.g., to Media, Police) - These are subject to rigorous conditions and are protected only in very limited circumstances. In addition to the "reasonable belief" and "public interest" tests, the worker must:
Reasonably believe the information is substantially true.
Not make the disclosure for personal gain.
Have previously disclosed substantially the same information to their employer or a prescribed person, or reasonably believe they would suffer detriment or that evidence would be concealed/destroyed if they disclosed internally first.
It must be reasonable in all circumstances to make the wider disclosure, considering factors like the seriousness of the default, whether it's continuing, and whether an internal procedure was followed. Disclosure to the media is particularly difficult to justify as reasonable.
Why Proper Disclosure is Paramount
Failure to adhere to these requirements can have severe consequences for the whistleblower:
Loss of Statutory Protection - If a disclosure does not meet the "qualifying" and "protected" criteria, the individual will not be considered a whistleblower under the law and will not be protected from detriment or automatically unfair dismissal. This means any retaliatory action by the employer might not be unlawful.
Difficulty Proving Causation - In legal claims, the whistleblower must prove that their protected disclosure was the reason (or principal reason) for dismissal or materially influenced the detriment suffered. A poorly articulated or undocumented disclosure makes this causal link much harder to establish.
Separability of Misconduct - Employers may argue that they took action due to the manner of the disclosure (misconduct), rather than the disclosure itself. For example, hacking into systems to obtain evidence is not protected, even if the underlying concern is legitimate. If the misconduct is separable from the protected disclosure, the whistleblower could face disciplinary action without legal recourse.
Credibility Issues in Tribunals - Clear, concise, and well-documented disclosures enhance a whistleblower's credibility in legal proceedings. Vague pleadings or inconsistent accounts can lead to costly requests for further information, applications to strike out claims, or deposit orders, which increase the burden on the whistleblower.
Breach of Confidentiality - While protected disclosures are legally exempt from confidentiality clauses, disclosures that do not meet the protected criteria could still amount to a breach of contractual or implied duties of confidentiality, leaving the individual vulnerable to legal action.
Time Limit Challenges: The clarity of when and what information was disclosed is vital for determining if a claim is brought within the strict three-month time limits for tribunal claims.
Practical Advice for Whistleblowers
To maximise the chances of a disclosure being protected, consider the following:
Document Everything - Where possible, make disclosures in writing to create a clear record of the content and date. If made orally, follow up in writing.
Be Specific and Factual - Ensure the disclosure conveys concrete information and facts, avoiding mere allegations or opinions without supporting detail.
Identify the Wrongdoing Clearly - State which type of wrongdoing or failure (e.g., criminal offence, health and safety risk, breach of legal obligation) the information tends to show.
Consider the Public Interest - Reflect on why the disclosure is in the public interest, beyond personal grievances.
Choose the Right Recipient - Always refer to internal whistleblowing policies first. Prioritise disclosing to the employer, or a prescribed person. Wider disclosures should only be considered as a last resort, and only if the strict statutory conditions are met.
Avoid Misconduct - Do not engage in actions (e.g., hacking, unauthorized access to information) that could be seen as misconduct, even in an attempt to gather evidence.
Keep Personal Records - Maintain a private record of all relevant correspondence and conversations related to the disclosure.
Seek Independent Legal Advice - Given the complexity, consulting with a legal adviser early can ensure the disclosure is made properly and that the whistleblower understands their rights and risks.
By carefully following these guidelines, and our template whistleblowers can significantly strengthen their position and ensure their important disclosures are legally protected.