Understanding whistleblowing
What is whistleblowing?
Whistleblowing is a worker disclosing information they reasonably believe shows one of six categories of wrongdoing:
a criminal offence;
breach of a legal obligation;
miscarriage of justice;
danger to health or safety;
damage to the environment; or
deliberate concealment of any of the above.
The disclosure must be in the public interest and concern past, present or likely future wrongdoing.
Who is protected under whistleblowing laws?
The Public Interest Disclosure Act 1998 (as inserted in the Employment Rights Act 1996) protects the broad statutory category of “workers.” This includes:
employees (including apprentices and trainees);
agency workers;
LLP members;
NHS practitioners and certain self-employed individuals who personally perform work;
office-holders (e.g. judges) and, on the facts, some non-executive directors or trustees.
Volunteers, genuinely self-employed consultants and armed-forces personnel remain outside the regime unless future case law extends it. Protection applies from day one and can cover former workers suffering post-employment detriment.
What protections do whistleblowers have?
Detriment: Any worker is protected from detriment (e.g. bullying, loss of work). Employers are vicariously liable for co-workers’ acts unless they prove they took all reasonable steps to prevent them.
Dismissal: For employees, dismissal for making a protected disclosure is automatically unfair (no service requirement, no compensation cap).
What constitutes a protected disclosure?
A disclosure is protected when:
It is a qualifying disclosure (one of the six failures above).
The worker reasonably believes it is in the public interest.
It is made to an appropriate recipient:
the employer or another person responsible for the wrongdoing;
a prescribed person or body (regulator) if internal disclosure is inappropriate;
an external party (e.g. the media) only under the strict s 43G/H conditions.
External disclosures lose protection if made for personal gain; this restriction does not apply to disclosures to the employer or a prescribed regulator.
Good faith: A disclosure made in bad faith still keeps legal protection. The tribunal may reduce compensation by up to 25 %, but cannot remove protection entirely.
How should a worker make a whistleblowing disclosure?
Follow the organisation’s whistleblowing policy where possible.
Disclose to a prescribed person if internal reporting is not appropriate.
Provide sufficient detail for investigation (evidence is not required).
Prefer written disclosures; anonymity is allowed but may limit follow-up.
Are there any conditions for the protection of whistleblowers?
The worker must hold a reasonable belief in both the truth of the information and its public-interest value.
Disclosures breaching statutory secrecy (e.g. Official Secrets Act) are unlikely to be protected.
Malicious intent does not strip protection but may lower any award.
Can an employer dismiss an employee for whistleblowing?
No. Dismissing an employee for making a protected disclosure is automatically unfair. Constructive dismissal may arise if the employee resigns due to post-disclosure detriment. Because awards are uncapped and interim relief is available, employers must ensure any disciplinary or dismissal action is wholly unrelated to the disclosure and that robust steps are taken to prevent retaliation.
