Whistleblowing – what is it?

by Redmans Solicitors on January 21, 2013

  • SumoMe

There’s been a spate of whistleblowing cases in the news recently – a  Royal Marine claimed he was sacked after highlighting financial irregularities, a former Royal Bank of Scotland executive went to the Employment Tribunal after claiming he was forced out over problems he was highlighting, and a former price analyst at ICIS fired after bring the FSA’s attention to strange bidding strategies in the wholesale energy market. So, what does a whistleblowing claim entail? We’ll have a look at that in this post by examining the following issues:

Please note: it is recommended that you obtain specialist employment law advice before issuing a claim for whistleblowing

  1. What is “whistleblowing”?
  2. What do you need to prove to succeed in a whistleblowing claim?
  3. How to succeed in a whistleblowing claim

What is “whistleblowing”?

Under the Employment Rights Act 1996 workers and employees have the right not to be subjected to a detriment (or dismissed) because they have made a protected disclosure to an appropriate person. The act of making a “protected disclosure” is commonly referred to as “whistleblowing” – and a whistleblowing claim occurs when an employee makes a claim for automatic unfair dismissal or detriment due to a protected disclosure in the Employment Tribunal.

What do you need to prove to succeed in a whistleblowing claim?

In order to succeed in a whistleblowing claim a Claimant must demonstrate that:

  1. They made a qualifying disclosure
  2. To an appropriate person
  3. In good faith

A qualifying disclosure is made if (among other) things the worker discloses information which shows that one of the following has been committed, is being committed, or is likely to be committed:

  • A criminal offence
  • A failure to comply with a legal obligation
  • A miscarriage of justice
  • That the health and safety of any individual is being endangered
  • That the environment is being damaged; or
  • That information relating to one of the above is being concealed

Who an appropriate person is really depends upon the situation at work. If it’s appropriate to make an “internal” disclosure then you should do so – the best thing to do (if you think it won’t lead to a detriment to you) is to disclose the information to your line manager or some other senior official. If you need to make an “external” disclosure then you can disclose the information to a lawyer or a Minister of the Crown, among others.

The disclosure must also be made in good faith.

How to succeed in a whistleblowing claim

In order to succeed in a whistleblowing claim an employee must demonstrate the above. Normally, the crucial issue is causation – why has the employee or worker been treated the way that they have? This is normally the strongest line of defence for an employer if there’s weak evidence relating to the reason for particular behaviour – they can just try and claim that the employee was dismissed for some other reason (such as misconduct) or (if they resigned) that they resigned for personal reasons.

Redmans are solicitors offering employment law advice and compromise agreement advice based in Richmond and the City of London.

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