Despite a legislative attempt a few years ago to narrow the scope of whistleblower protection, introducing a requirement for a worker to hold a reasonable belief that making the disclosure is in the public interest, whistleblowing is still a hot topic.
Employees who make a protected disclosure cannot be subjected to a detriment or dismissed because of making that protected disclosure. Whistleblower protections cover an extended definition of ‘worker’.
To be protected there must be a disclosure of information that, in the reasonable belief of the employee/worker, shows that one of the following has occurred, is occurring, or is likely to occur:
- Criminal offence
- Breach of any legal obligation
- Miscarriage of justice
- Danger to health and safety of any individual
- Damage to the environment
- Deliberate concealing of information about any of the above.
The employee/worker must also reasonably believe that the disclosure is ‘in the public interest’. There is no requirement that the disclosure be made in good faith (but compensation can be reduced by up to 25% for lack of good faith).
Disclosures can be made to the employer (internal) or certain external categories (prescribed persons, including HMRC, HSE, MPs and certain industry regulators).
We know from case law that there must be a disclosure of information and that a mere allegation is not sufficient to qualify the worker for protection. Although the distinction is often difficult to draw, a disclosure of information must involve conveyance of facts.
The requirement for the worker to hold a reasonable belief that the disclosure they are making is in the public interest has received recent judicial attention. It’s not necessary for the disclosure to be in the public interest, just that the worker believed it was, and that their belief was objectively reasonable. Case law shows that it can be possible to satisfy the public interest test even where only a relatively small group or section of the public have an interest. At the time of writing we are awaiting an important judgment from the Court of Appeal on this particular point.
The Court of Appeal recently held that where the making of a disclosure is the principal reason for a dismissal, the decision taker’s belief about whether the disclosure is protected is not relevant, even where the employer judged the disclosure as gratuitous, without merit, or self-motivated.
Nina Robinson is a director at ESP Law, provider of HR magazine’s HR Legal Service