What constitutes a ‘Protected Disclosure’ under Whistleblowing legislation?
Whistleblowing claims seem to be on the rise. With the abolition of tribunal fees, we are likely to see more. Here is a useful explanation of what constitutes a protected disclosure, and what sorts of claims can arise from a disclosure.
An individual “blows the whistle” when they reveal information which relates to suspected wrongdoing or dangers at work.
Whistleblowing concerns usually relate to the conduct of managers or staff, but they may sometimes relate to the actions of a third party, such as a customer, supplier or service provider.
A Protected Disclosure needs to be a qualifying disclosure fitting into a legal definition, made by a worker. This would be any disclosure of information which the worker reasonably believes shows or is likely to show:
· A criminal offence
· Failing to comply with a legal obligation
· A miscarriage of justice
· Health and safety of an individual is endangered
· Environment is damaged or
· Information on the previous points is being concealed
The Public Interest Disclosure Act (PIDA) 1998, provides protection for workers reporting malpractices by their employers or third parties against victimisation or dismissals. This automatic protection, prevents employers dismissing employees on the basis of them making a protected disclosure against them, as well as them being subject to any detriment.
Who is protected under PIDA?
PIDA protects not only current employees, but also includes former employees under an express or implied contract. Furthermore, protection can be provided to:
· Employee shareholders
· Non-employees undergoing training or work experience
· Agency workers
· Police officers
· Student nurses and
· Student midwives
Making a Disclosure of Information
In order for a protected disclosure to be created, it must be new information which the employer was previously unaware of or bring attention to a matter of which they are already aware. In regard to this information, it must be more than an allegation or a statement.
Once this information has been disclosed, if an employee is subject to detriment from this disclosure they can make a detriment claim against the employer.
If the detriment is in the form of a dismissal, an employee would have to bring an unfair dismissal claim. An employee could bring a separate claim against the employer up to the date of dismissal. In addition, they could also claim for detriment against any colleague involved in the decision to dismiss.
If an employee were to claim under a detriment case, it would need to be presented before 3 months since the date of the act or failure to act to which the complaint relates to.
In relation to an unfair dismissal claim due to a protected disclosure, the usual qualifying period of 2 years employment won’t apply and there will be no limit to compensation.
This makes it an attractive claim for employees with less than 2 years’ service to bring, sometimes without much merit.
From the Employment Tribunal, it is irrelevant that an employer believed that an Employee’s disclosure wasn’t protected, if it follows statutory requirements, it will be protected, and the employee unfairly dismissed. In addition, the Employment Tribunal cases show that being unaware of the protected disclosure still results in a claim for unfair dismissal.
An unfair dismissal case would need to be presented within 3 months of the effective date of termination.
How can we help you?
If you feel that you need to update and improve your whistleblowing policy, then please don’t hesitate to get in touch with us. We can help you to identify whether you are adhering to current guidelines and put in place legally compliant policies and processes to minimise the risk to your business.
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