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Whistleblowing: the employment rights behind the WikiLeaks story

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With WikiLeaks founder Julian Assange in court again in the UK this week fighting extradition to Sweden, and as his alleged source, Bradley Manning, soldier and whistleblower, faces criminal charges in the US, it is an opportune time to take a look at the protection offered to workers and employees who blow the whistle.


The Public Interest Disclosure Act 1998 gave whistleblowing workers protection from being subjected to a 'detriment' (victimisation, financial penalty etc), or (for employees) being unfairly dismissed. The protection in respect of detriment is offered not just to employees, but to workers as well. 'Worker' is loosely defined as someone who works under a contract to perform work personally, other than in a client or customer relationship.

In order to secure protection from this legislation, a number of legal tests need to be met.

 

Qualifying disclosure

The worker must disclose information which in their reasonable belief shows:

  • That a criminal offence has been committed, is being committed, or is likely to be committed
  • That a person has failed, is failing or is likely to fail to comply with any legal obligation
  • That a miscarriage of justice has occurred, is occurring or is likely to occur
  • That the health or safety of any individual has been, is being or is likely to be endangered
  • That the environment has been, is being or is likely to be damaged
  • That information relating to the above has been, or is likely to be, deliberately concealed

The worker must actually communicate the information and it should be more than just an allegation, ie ‘you are committing a criminal offence’ is not sufficient. They must also believe the substance of the disclosure. It does not matter that they might be wrong, as long as they believe at the time of making the disclosure that they are right.

 

Making the disclosure

The worker must make the qualifying disclosure in good faith. The whistleblowing legislation will not protect them if they are pursuing a personal grudge.

The worker should normally make the qualifying disclosure to their employer, although there are provisions for making a disclosure to another person connected with the employer.

For those working in the public sector, a qualifying disclosure can be made to a government minister. or to a specified public authority; there is a detailed list of such authorities, which includes, for example, the Financial Services Authority and the Office of Fair Trading.

There are further detailed provisions dealing with qualifying disclosures to third parties, for example newspapers, although the worker must meet certain requirements, including: making the disclosure in good faith, believing the truth of the information and not doing so for personal gain.

 

Protection

If the worker meets the requirements as summarised above, then they are protected from suffering a detriment. 'Detriment' is not defined by the legislation, but can include victimisation, suffering financial penalty, or being overlooked for promotion. The protection from detriment continues through the working relationship and can extend after the working relationship has come to an end.

An employee (but not a worker) is protected from being unfairly dismissed because they have blown the whistle. The employee does not have to be employed for one year to obtain this protection and any compensatory award is not subject to the normal statutory cap (at present £65,300).

In order to have the benefit of the protection listed above, the worker will need to show a connection between the whistleblowing and the detriment or dismissal. In a detriment case, the worker needs to show that they suffered a detriment "on the ground that the worker has made a protected disclosure". In a dismissal case, the employee needs to show that the "reason... or principal reason for the dismissal is that the employee made a protected disclosure".

 

Summary

A worker will need to think very carefully before they blow the whistle. If the worker is unsure about their rights, then they should take legal advice – the whistleblowing legislation also protects workers who make a disclosure in the course of obtaining legal advice.

 

Harriet Broughton is a solicitor at Bevans