Whistleblowing: Employer's Guide to Protected Disclosures

Whistleblowing protection is one of the strongest employment law protections. Getting it wrong can result in uncapped compensation. Here's how to handle it properly.

What Is Whistleblowing?

Protected Disclosure

A worker makes a protected disclosure when they report:

• A criminal offence
• Breach of a legal obligation
• A miscarriage of justice
• Danger to health and safety
• Damage to the environment
• Deliberate cover-up of any of the above

Who Is Protected?

Broader than employees:

• Employees
• Workers (including agency workers)
• Contractors (in some circumstances)
• Trainees
• Home workers
• Former employees (for post-employment detriment)

What's NOT Whistleblowing

• Personal grievances (unless they involve wrongdoing)
• Complaints about your own contract
• Disagreement with business decisions
• Disputes about pay or working conditions

Key distinction: Whistleblowing is about wrongdoing affecting others or the public interest, not personal employment issues.

Legal Framework

Public Interest Disclosure Act 1998

Protects workers who make qualifying disclosures:

• To their employer
• To a prescribed person/regulator
• To others in certain circumstances

ERA 1996 (as amended)

• Section 43A-L: Protected disclosures
• Section 47B: Protection from detriment
• Section 103A: Automatic unfair dismissal

Qualifying Disclosures

The Requirements

For protection, the disclosure must:

1. Be about one of the listed categories of wrongdoing
2. Be made in the reasonable belief it's in the public interest
3. Be made in the reasonable belief the information is substantially true
4. Be made to an appropriate person

Categories of Wrongdoing

Category	Examples
Criminal offence	Fraud, theft, bribery, health and safety breaches
Legal obligation breach	Contract law, statutory duty, regulatory breach
Miscarriage of justice	Wrongful conviction, suppression of evidence
Health and safety danger	Unsafe equipment, dangerous practices
Environmental damage	Pollution, illegal waste disposal
Cover-up	Hiding any of the above

Reasonable Belief

Worker must reasonably believe:

• The information tends to show wrongdoing
• Disclosure is in the public interest
• The information is substantially true

Note: They don't have to be right - the belief must be reasonable.

Protected Disclosures

To the Employer

Most straightforward protection:

• Internal reporting
• Following internal procedures
• To a manager or designated person

Advantage: Widest protection, easiest to qualify.

To Prescribed Persons

Regulators with oversight:

• Health and Safety Executive
• Financial Conduct Authority
• Environment Agency
• Information Commissioner
• Care Quality Commission
• And many others

Requirement: Reasonable belief the matter falls within that body's remit.

Wider Disclosures

To media, MPs, or public. Higher threshold:

• Must reasonably believe information is substantially true
• Must not be for personal gain
• Must be reasonable in all circumstances
• Usually requires internal/regulator route tried first OR reasonable belief it would be ineffective

Automatic Unfair Dismissal

No Qualifying Service

Unlike ordinary unfair dismissal:

• Day one right
• No service requirement
• Automatically unfair if disclosure is reason for dismissal

Burden of Proof

Employee shows:

• They made a protected disclosure
• They were dismissed

Employer must show:

• Dismissal was for a different reason
• Disclosure played no part

Compensation

Uncapped. Based on actual losses:

• Basic award
• Compensatory award (no cap)
• Can be substantial for senior employees

Protection from Detriment

What Is Detriment?

Any disadvantage short of dismissal:

• Demotion
• Denied promotion
• Excluded from meetings
• Reduction in responsibilities
• Poor performance ratings
• Bullying or harassment
• Less favourable treatment

Who Can Be Liable?

• The employer (vicariously)
• Individual managers and colleagues (personally)

The Test

Was the worker subjected to detriment on the ground that they made a protected disclosure?

Creating a Whistleblowing Policy

Why Have One?

• Encourages internal reporting first
• Shows commitment to ethical conduct
• Protects business from wrongdoing continuing
• May reduce compensation if you act on concerns
• Required for some regulated businesses

Policy Contents

Statement of commitment:

• Take concerns seriously
• Protect those who raise concerns
• Investigate properly

What can be reported:

• List the categories
• Distinguish from grievances

How to report:

• Named contacts
• Alternative routes
• Anonymous option (limitations)

What happens next:

• Acknowledgment timeframe
• Investigation process
• Feedback to reporter

Protection from retaliation:

• Explicit commitment
• What to do if victimised
• Disciplinary for retaliation

Confidentiality:

• Kept confidential where possible
• When it can't be (investigation needs)
• Anonymous disclosures

Implementing the Policy

• Communicate to all staff
• Train managers
• Designate responsible persons
• Review regularly

Handling Concerns

Receiving a Disclosure

Do:

• Take it seriously
• Thank them for raising
• Explain what happens next
• Reassure about protection
• Document carefully

Don't:

• Dismiss without consideration
• Promise outcomes
• Reveal to accused immediately
• Treat them differently

Initial Assessment

Determine:

• Is this a protected disclosure?
• Is it a personal grievance?
• What category of wrongdoing?
• Is it urgent?
• Who needs to know?

Investigation

Follow proper investigation principles:

• Independent investigator
• Gather evidence
• Interview relevant people
• Document findings
• Reach conclusions

Outcome

Decide on:

• Was wrongdoing established?
• What action is needed?
• Who needs to be informed?
• What can you tell the whistleblower?

Feedback

Provide appropriate feedback:

• Acknowledge their concern
• Explain you investigated
• Share outcome (within limits)
• Explain any action taken
• Thank them

Common Mistakes

Treating Concerns as Performance Issues

Whistleblower raises concern about safety.

Wrong: "They're being difficult, let's manage their performance."

Risk: Detriment claim, automatic unfair dismissal.

Ignoring Concerns

Thinking "it will go away."

Risk:

• Wrongdoing continues
• Whistleblower goes external
• Regulatory investigation
• Reputational damage

Breaking Confidentiality

Telling the accused who reported them.

Risk:

• Retaliation against whistleblower
• Claim for detriment
• Loss of trust in process

Assuming Good Faith Required

Old law required good faith. Now:

• Good faith NOT required for protection
• But bad faith can reduce compensation by up to 25%

Special Situations

Anonymous Disclosures

Challenges:

• Can't provide feedback
• Harder to investigate
• May lack detail
• Still should investigate

Malicious Disclosures

If disclosure is made in bad faith:

• Still protected if objectively qualifying
• But compensation can be reduced 25%
• Consider separately to substance

Repeated Concerns

If same concern raised repeatedly:

• Investigate properly first time
• Document outcome
• Explain why matter closed
• Don't penalise for persistence (unless vexatious)

External Disclosure First

Employee goes to media without internal reporting.

Assessment:

• Did they believe internal route pointless?
• Was matter urgent?
• Were they reasonable?
• May still be protected

Risk Management

Preventing Retaliation

• Clear message from top
• Train managers
• Monitor treatment of whistleblowers
• Investigate any concerns about retaliation
• Disciplinary for retaliators

Documentation

Keep records of:

• All disclosures received
• How they were handled
• Investigation outcomes
• Treatment of whistleblower
• Feedback provided

Regular Review

• Audit disclosures received
• Check for patterns
• Review whistleblower treatment
• Update policy as needed
• Board/senior management oversight

Regulatory Requirements

FCA-Regulated Firms

Must have:

• Written policy
• Whistleblowing champion
• Annual report to board
• Inform FCA of material concerns

Listed Companies

Corporate governance code expectations:

• Arrangements for raising concerns
• Proportionate investigation
• Board oversight

NHS and Healthcare

Specific requirements:

• Freedom to Speak Up Guardians
• Reporting to CQC
• National Guardian's Office guidance

Checklist

Policy

• Written whistleblowing policy
• Distinguished from grievance procedure
• Multiple reporting channels
• Confidentiality provisions
• Anti-retaliation commitment
• Communicated to all staff

Handling Concerns

• Trained designated persons
• Clear receipt and acknowledgment process
• Documented investigation procedure
• Feedback mechanism
• Record keeping system

Protection

• Managers trained on protections
• Monitoring of whistleblower treatment
• Disciplinary provisions for retaliation
• Support available for whistleblowers