4 October 2018

HR update; whistleblowing toolkit

What protection does the law give to whistleblowers?

Protection for whistleblowers was introduced by the Public Interest Disclosure Act 1998 (PIDA), which amended the Employment Rights Act 1996 (ERA 1996). The ERA 1996 protects employees and workers from being dismissed or subjected to detriment because they have made a protected disclosure.

Unfair dismissal
The dismissal (including constructive dismissal) of an employee will be automatically unfair if the reason, or principal reason, is that they have made a protected disclosure. The same applies to selection for redundancy.

There is no qualifying minimum period of service, and tribunals are not restricted by the usual upper limit on compensation. Whistleblowing claims are sometimes used tactically for this reason.

Unlawful detriment
It is unlawful for an employer to subject one of its workers to a detriment (including threats, disciplinary action, loss of work or pay, or damage to career prospects) on the ground that they have made a protected disclosure. The concept of a ‘worker' in the whistleblowing legislation is broad and includes, among others, agency workers, freelance workers, seconded workers, homeworkers and trainees, as well as employees.

Since 25 June 2013, an employer is vicariously liable for the act of a worker in subjecting a whistleblower to a detriment. The employer will have a defence if it took all reasonable steps to prevent the detrimental treatment. Individuals can also face personal liability e.g. Directors

When is a disclosure protected?
There must be a qualifying disclosure of information.

There must be a disclosure of information that, in the reasonable belief of the worker, tends to show that one of following has occurred, is occurring, or is likely to occur:
- A criminal offence
- Breach of any legal obligation - this can include a breach of the workers contract
- Miscarriage of justice
- Danger to the health and safety of any individual
- Damage to the environment
- The deliberate concealing of information about any of the above

Why is protection of whistleblowers important?
Providing effective protection for whistleblowers is important for employers for several reasons including internal control of risk, avoiding unnecessary litigation, limiting reputation damage and protecting staff morale. It can also be important to avoid criminal liability: please note the compliant from the whistleblower must be more than merely trivial.

Case Law

Chesterton Global Ltd and another v Nurmohamed [2017] IRLR 837 CA

whistleblowing | protected disclosure | in the public interest 

The Claimant was employed by Chesterton Global Limited (‘Chestertons’) as Director of its Mayfair office. Following his dismissal, he brought proceedings in the Employment Tribunal alleging that he had suffered detriments and been dismissed because he had made protected disclosures within the meaning of section 43B of the Employment Rights Act (‘ERA’) 1996.

The Court of Appeal upheld the decision of the employment tribunal that disclosures made by a worker satisfied the "public interest" requirement for protection under the whistleblowing provisions of the Employment Rights Act 1996. The disclosures related to a breach of the employment contracts of 100 senior managers, including the whistleblower.