Whistleblowing and Protected Disclosures

We are Whistleblowing Solicitors and Protected Disclosure Solicitors in London:

To bring a whistleblowing claim under s43A-K Employment Rights Act 1996:

One: The worker must make a disclosure of ‘information’ either verbally or in writing. In Cavendish Munroe Professional Risks Management Ltd v Geduld [2010] IRLR 38 the EAT held that to qualify as a protected disclosure, ‘information’ must be disclosed, not simply an allegation or a concern.

In Kilraine v London Borough of Wandsworth [2018] EWCA Civ 1436, the Court of Appeal held that, for an ‘allegation’ to also constitute “information” it has to have a sufficient factual content and specificity such as is capable of tending to show one of the matters listed in the legislation.

The EAT has given the following example: ‘communicating ‘information’ would be ‘the wards have not been cleaned for the past two weeks. Yesterday sharps were left lying around’. Contrasted with that would be a statement that ‘You are not complying with Health and Safety requirements’. In our view this would be an allegation not information’.

Two: The disclosure must relate to one of six types of prescribed failure:

(1) Criminal offences;

(2) Breach of any legal obligation;

(3) Miscarriages of justice;

(4) Danger to the health and safety of any individual;

(5) Damage to the environment; and

(6) Concealing information (deliberately) about the above malpractice.

Three: The Worker must reasonably believe that the information tends to show one of those failures.

Four: The Worker must reasonably believe that the disclosure of information is ‘in the public interest’?

Five: The worker must make the disclosure to his or her employer or a prescribed person (normally the employer).

Six: The worker then needs to be able to satisfy a Tribunal that he or she suffered a detriment or dismissal because of the Protected Disclosure, and not for any other reason.

It is unlawful to subject an employee to a detriment as a result of making a protected disclosure or to dismiss the employee as a result of making a protected disclosure.

Normally employees cannot claim unfair dismissal if they have less than two years service. However if they are dismissed as a result of making a Protected Disclosure, they don’t need two years service and can claim Automatic Unfair Dismissal.

Such claims can be quite technical in nature, and are sometimes difficult to prove.