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Whistleblowing protection for employees

First of all, “Whistleblowing” is the common term for the situation where an individual makes a protected disclosure and a protected disclosure may be made when an individual raises concerns about a malpractice in an organisation.

Workers who “blow the whistle” have, in certain circumstances, a right not to be dismissed or subjected to any other detriment as a result. A worker who makes a disclosure will be protected where they have a reasonable belief in the disclosure and the disclosure is made in the public interest.  Provided that the worker can point to objective grounds to justify their belief, it does not matter that no legal obligation exists or the belief is based on incorrect facts.

If the relevant failure is exceptionally serious, any qualifying disclosure made externally will be protected if the worker:

  • Does not act for personal gain
  • Makes the disclosure in good faith
  • Reasonably believes the information disclosed, and any allegation contained in it, are substantially true

Also, it must be reasonable for the worker to make the disclosure in view of all the circumstances – with particular regard to the identity of the person to whom the disclosure is made.

Only an industrial tribunal/arbitrator can decide whether or not the relevant failure is exceptionally serious. This will be a matter of fact and not simply a matter of the worker reasonably believing it to be exceptionally serious.

Recent case law on what amounts to “public interest” shows that it will be relatively simple for workers to satisfy this requirement.  In the case of Chesterton Global Ltd v Nurmohamed, the Employment Appeal Tribunal (EAT) found that a disclosure relating to the earnings of 100 senior managers was in the public interest. Court of Appeal upheld ET finding.

It was suggested in this case that a four-fold test would be useful when considering whether a disclosure is made in the public interest:

  • The individuals whose interests the disclosure served;
  • The nature of the interests affected and the extent to which they are affected by the wrongdoing disclosed;
  • The nature of the wrongdoing disclosed (for example, whether it was a deliberate wrongdoing which would be deemed to be more serious and therefore more so in the public interest);
  • The identity of the wrongdoer – the larger or more prominent the wrongdoer, the more obviously the disclosure would be in the public interest.

Judging by the case law, the new public interest test has done little to narrow the scope of protection for whistleblowers.

There seems a growing recognition that whistleblowers should be listened to even if they are acting from mixed motives. Indeed it could be argued that replacing the good faith requirement with a public interest test has resulted in widening rather than narrowing the scope of protection.