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Overview of whistleblowing

Whistleblowing is when a worker reports wrongdoing in the public interest.听听

The Employment Rights Act 1996 protects workers in Great Britain who 鈥榖low the whistle鈥� from being treated unfairly and from听dismissal, if听certain conditions in the Act are met. This is known legally as making a 鈥榩rotected disclosure鈥�.听

For a worker to receive protection, they must:鈥�鈥�鈥�鈥�听

• reasonably believe that a disclosure is 鈥渋n the public interest鈥�

• reasonably believe that the disclosure shows that one or more type of wrongdoing listed in the Act has taken place, is taking place or is likely to take place. For example, a danger to health and safety

• make the disclosure through the appropriate channels. For example, to their employer or to a relevant regulator or organisation, known as a 鈥�prescribed person鈥�

听and this guidance only relates to Great Britain.听听

Workers听can raise concerns听at any time about an incident that happened in the past, is happening now, or you believe will happen in the future.听

What qualifies as whistleblowing

To听qualify for whistleblowing protection under the law, a worker must:听

• reasonably believe that听their听disclosure听is about听a听certain type of听wrongdoing

• reasonably believe that听reporting the wrongdoing is听鈥渋n the public interest鈥�

• make the听report听through the appropriate channels

These conditions are explained further below.听听

Disclosures of wrongdoing that count as whistleblowing听

A worker must听reasonably believe听that听one or more of听the following types of wrongdoing has taken place, is taking place or is likely to take place:听

• a criminal offence 鈥� for example,听an employer committing fraud听听

• a breach of a legal obligation 鈥� for example, an employer does not have the right insurance听听

• a miscarriage of justice听鈥� for example, a worker has听identified听evidence that was not provided to a court that they听reasonably believe听would have changed the outcome of a case听听

• someone鈥檚 health and safety听is听in danger 鈥� for example, customers have been served contaminated food听听

• damage to the environment 鈥� for example, new business activities are likely to pollute local rivers听听

• sexual harassment 鈥� for example, a worker sexually harasses other workers听

• the deliberate concealment of information tending to show any of the above听

Public interest test听听

A worker must听reasonably believe听that听reporting the wrongdoing is听鈥渋n the public interest鈥�.听听

Generally, this听means听the wrongdoing听will听impact听others, not just the worker. For example, other colleagues or the public.听

In deciding if the disclosure is in the public interest a听Tribunal听would look at the facts of the specific case, but听may consider听the following听four factors when听determining听whether a disclosure is in the public interest:听听

1. The numbers in the group whose interest the disclosure served:听for example, a larger number of people听impacted听by wrongdoing might be more likely to be considered in the public interest although not necessarily.听听
2. The听nature听of the alleged wrongdoing听and the听impact of听the wrongdoing听disclosed:听an assessment of whether the wrongdoing was听marginal听or听indirect听or听important. A disclosure affecting听a very important听interest e.g. public health or substantial financial fraud might be more likely to meet the test even if the group affected is听relatively small.听听
3. The nature of the wrongdoing听disclosed:听If the wrongdoing was deliberate听or accidental may be听taken into account听and where the wrongdoing was deliberate, this might be more likely to be in the public interest than an inadvertent wrongdoing affecting the same amount of people.听听
4. The identity of the alleged wrongdoer:听If the wrongdoing involves a high-profile person or large organisation, their actions may have had wider reach and therefore听may be听more likely to be considered in the public interest.听听听

Who workers can make a disclosure to听

A worker must听report the wrongdoing through the appropriate channels for their disclosure to be protected.听

They could make their disclosure听to听their听employer or another person they think听is responsible for听the wrongdoing. A worker for a government department or听statutory body听can also听make their disclosure to听a听government听minister听or Scottish minister.听听听

A worker can also听make a disclosure to听their legal adviser,听in the course of听obtaining legal advice.听听

A听worker may want to听make their disclosure听externally to听a relevant authority or body.听This will be a protected disclosure if it is made to听a听prescribed person,听the worker听reasonably believes听that the wrongdoing falls within that person鈥檚 prescribed听remit, and听reasonably believes听that the disclosure (the information and any allegations) is听substantially true.听For example, whistleblowing disclosure made to the Financial Conduct Authority about financial crime.听听

Disclosures to third parties听听

If a worker makes a disclosure to a third party, such as to a media organisation or by posting on social media, it will only be protected in听the following听limited circumstances.听听

A disclosure may be protected if all the following conditions are met:听听听听听听

• the worker听reasonably believes听that the information听disclosed, and any allegations contained in it, are听substantially true
• the worker does not make the disclosure for personal gain
• it is reasonable for the worker to make the disclosure in the circumstances of the case

And听if听one听of the following circumstances applies:听听

• the听worker听reasonably听believes听they听will be听subjected to a detriment听(adverse treatment)听if they make听the disclosure to听their employer听or听to听a prescribed person

• where there听is听no prescribed person听and听the听worker听reasonably believes听that evidence will be destroyed or concealed if they make the disclosure to their employer

• the worker has already听disclosed听substantially the听same information to either their employer or a prescribed person

• the disclosure听relates to a failure of an 鈥榚xceptionally serious nature鈥�.听Whistleblowing legislation does not define 鈥榚xceptionally serious,听this would be for an employment tribunal or a court to听determine听on a case-by-case basis

Role of a prescribed听persons听in whistleblowing听

Prescribed persons are听designated听by an order made by the Secretary of State and listed in The Public Interest Disclosure (Prescribed Persons) Order 2014.听

Read the list of prescribed people.

A听prescribed听person听can receive whistleblowing disclosures听(protected disclosures)听from workers听about matters within their remit.听听

As a prescribed persons听you听may听have听investigatory and regulatory functions听which听you听can听act听upon听when relevant听information听has been听disclosed听to听you.听This can听include听further work beyond the听initial听contact:听from听a single follow-up call with the whistleblower to seek further clarity,听up听to a large piece of work investigating the organisation that has been reported.听听

If the statutory functions听of the organisation permit,听you听can encourage听these听organisations听to have whistleblowing policies听that听assist听in ensuring effective procedures are听followed,听making听it more likely that concerns听are听raised internally听and听reducing the chances of escalation.听

Most听prescribed persons must publish annual reports on disclosures听received,听this is听required under听.听See 鈥楧uty to report on whistleblowing disclosures鈥�.听听

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Every听prescribed person听that interacts with听the public receives complaints.听Not all of these will be whistleblowing disclosures. In considering whether to treat a complaint as a whistleblowing disclosure, you should consider听what qualifies as whistleblowing.听听听听

Ultimately, whether听a complaint is a whistleblowing disclosure can only be听determined听by an employment tribunal.听As a general rule, you should treat听any concerns about potential wrongdoing seriously and take steps to address them.听

Duty to report听on whistleblowing disclosures

You听must produce听and publish听an annual report on whistleblowing disclosures made to听you听under the听Employment Rights Act 1996, except if听you鈥檙e听exempt (list of exemptions below).听听

This听reporting period runs from 1 April to 31 March each year.听

The report听must听contain:听

• the听total听number of disclosures听you听received听in听the reporting period听and that fall within your remit as a prescribed person听(the prescribed person must听reasonably believe听the disclosure of information is a qualifying disclosure)听

• the number of disclosures where听you听decided to take further action in that period (whether,听or not,听that action was听actually undertaken听within that period)听

• an explanation of听your听functions听and听objectives听

• a听summary of the type of action taken听听

• a听summary of how the information听disclosed听has听impacted听on听your organisation鈥檚听ability to perform its functions and meet its objectives听

For example,听if听an objective听of听your听body is to improve services,听it may be possible to say that the disclosures have led to an improvement in services in听your听sector (provided doing so would not听identify听any听whistleblowers听or the subjects听of the whistleblowing).听

What counts as taking further action听

You must report on the number of disclosures where you decided to take further action. This could include the number of:听

• disclosures that were referred to an alternative body听

• disclosures that听required听further investigation听

• disclosures where you made recommendations to employers on how they could rectify the problems you found (either in relation to their whistleblowing policies and procedures, or in relation to the issues which form the substance of the whistleblowing disclosure)听

• organisations investigated that had whistleblowing policies in place听

• enforcement actions taken where you found evidence of wrongdoing听

What to include in a summary听of the type of action taken听

Your summary of the action taken could include听information on:听

• cases where the issue was resolved after first contact with the employer听

• any听further听investigations and their听outcomes听

• any听enforcement actions听and their outcomes听

The听report should听demonstrate听that for听every disclosure听you have received, you have:听

• given听it听reasonable consideration听听

• dealt with听it听on a case-by-case basis听听

• acted on it听to a defined set of policies and procedures, ensuring a consistent approach听

Protecting confidentiality听

You听must听not include any case-specific information听in your report听which could lead to听the听identification of:听

• a whistleblower听

• the employer听

• anyone else involved听

You听must听not include anything听which could compromise confidentiality of an ongoing investigation.听

When you must听publish the report听

You must听publish the report:听

• within 6 months of the end of the reporting period听which听runs for 12 months, from 1 April to 31 March

• on听your organisation鈥檚听website听(or听anywhere听else听you听consider听appropriate for听bringing the report to the听public鈥檚听attention)听

The report may be included as part of another report which you publish, such as an annual report, or it may be a standalone report.听

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You鈥檙e听exempt from听publishing听the听annual report听if听you鈥檙e:听

• an MP听

• a Minster of the Crown听

• a Welsh Minister听

• a Scottish Minister听

• the European Securities and Markets Authority听

• an auditor appointed to audit smaller authorities