Protected Disclosures (Whistleblowing)
We frequently receive enquiries from workers who have made protected disclosures and are whistleblowers. Our clients are often being treated unfairly after they have raised serious concerns about behaviours they have witnessed at work. These workers, or whistleblowers, are often unsure of what their rights are and how they can protect themselves.
If you are whistleblower, we would always suggest you take legal advice. Obviously, we hope you would contact us at Lincs Law Employment Solicitors. However, even if you have another solicitor or are representing yourself, we hope the information on this page is helpful.
What is a Whistleblower?
A whistleblower is the term used for a worker who has made a protected disclosure to and/or about their employer or colleagues. The term ‘worker’ covers a wide definition and is not just limited to employees but also contractors, agency workers, trainees and NHS professionals.
A protected disclosure is where a worker discloses information to and/or about their employer or colleagues which is in the public interest. Recent examples of whistleblowing cases which we have assisted with include:
- An employee working for a Care Home reported to their manager that they had witnessed residents being abused by another member of staff;
- An accountant executive who reported to the Management Board that they had discovered financial and compliance irregularities in the company’s tax and account reports;
- An NHS worker who reported that there had been a failure to follow the correct hygiene directions on the ward.
What is important to note with all these examples is the need for the protected disclosure to be made in the public interest and not just an issue for their own work or employment.
What information qualifies as a Protected Disclosure?
In order to qualify as a protected disclosure, the information the worker discloses must fall into one of the following categories:
- A criminal offence has been committed;
- A failure to comply with a legal obligation;
- A miscarriage of justice has occurred;
- The health and safety of any individual has been endangered;
- The environment has been damaged;
- Information relating to any of the above matters is being or has been concealed by the employer.
The worker making the Protected Disclosure should do so in good faith and have a genuine belief in their disclosures.
What are your rights?
A worker should not be subjected to any detriments, harassment, or dismissal because they have acted as a whistleblower and made a protected disclosure.
A detriment is where a worker receives negative or unfavourable treatment from their employer and / or work colleagues as a result of their whistleblowing.
Treatments which can be classed as detriments are wide ranging and can include being yelled or sworn at during their employment; being excluded from promotion opportunities; being excluded from meetings you would have normally been a part of; or being subject to disciplinary action.
It is important to note when considering whether you have been subject to a detrimental treatment that it includes treatment incurred up to but short of actual dismissal. Therefore, the act of dismissal cannot be treated as a detriment (please see below).
If a worker is being subjected to detrimental treatment the first action to be taken is to raise your concerns with the employer as a formal grievance. Please see the information available on this website about how to raise a grievance lincslaw.co.uk/blog/need-to-send-a-grievance-or-compliant-to-your-employer
Dismissal / Termination of Employment
When a worker can show that the principle reason they were dismissed is due to them making a protected disclosure they will be able to bring a claim in the Employment Tribunal for automatic unfair dismissal.
The type and amount of compensation you may receive will depend upon which claim is brought.
For a claim of automatic unfair dismissal due to whistleblowing, a worker may be able to claim compensation. This type of compensation claim consists of two elements. The first is a basic award which is calculated by reference to the length of employment. The second element will look to compensate the worker for their loss of earning. To assess this loss, they will look at the amount of earnings the worker has lost, as well as other potential financial benefits, such as pensions and other work benefits (company car, health care etc).
In detriment cases, the worker may be awarded compensation for injury to feelings. These types of damages are classed as non-economic and are designed to compensate the worker for the suffering and detriment they have been subjected to.
What are the Time Limits for Whistleblowing claim?
You will need to begin the ACAS Early Conciliation process within three months less one day from your date of termination, or last act of detriment. The time limit for submitting your Employment Tribunal claim will depend upon the dates of your ACAS Early Conciliation. However, it is important that you begin the ACAS Early Conciliation process within the three-month deadline as a failure to do so many render your claim out of time.
Lincs Law Employment Solicitors Can Help
If you are a whistleblower and would like some advice about your situation, please call for a free no obligation telephone consultation on 01522 440512, use our contact form, email firstname.lastname@example.org or use the webchat on this website.