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Whistleblowers

The law gives protection to employees or workers who make “protected disclosures” (sometimes known as “whistleblowers”).

The definition of “worker” is specially extended in whistleblowing cases and can cover people who work through an agency, their own company or an “umbrella” company. This is confirmed in a recent case.

This makes it unlawful to victimise or dismiss someone by reason of the fact that they have made a protected disclosure.

A protected disclosure means any disclosure of information which, in the reasonable belief of the worker making the disclosure, is made in the public interest and tends to show one or more of the following—

(a)     that a criminal offence has been committed, is being committed or is likely to be committed,
(b)     that a person has failed, is failing or is likely to fail to comply with any legal obligation to which he is subject
(c)     that a miscarriage of justice has occurred, is occurring or is likely to occur,
(d)     that the health or safety of any individual has been, is being or is likely to be endangered,
(e)     that the environment has been, is being or is likely to be damaged, or
(f)     that information tending to show any matter falling within any one of the preceding paragraphs has been, or is likely to be deliberately concealed.

To be protected the disclosure must be made in good faith to either the employer or the person or organisation who is accused of being in the wrong.

Alternatively if an employee believes the information comes within the responsibility of any of a number of specified bodies, a disclosure to one of those bodies will count as a protected disclosure. They are listed in the Schedule to the Public Interest Disclosure (Prescribed Persons) Amendment Order.

Sometimes a disclosure will be protected if made to someone other than the employer or one of the prescribed bodies.

In order to qualify for protection it must have been reasonable to have made the disclosure and it must be the worker’s reasonable belief that if he made it to the employer he would be subjected to a detriment, that evidence will be concealed, or that he has already disclosed it to the employer.

Protection of workers who make a protected disclosure

A worker has the right not to be subjected to a detriment in their work if they make a protected disclosure.

An employee who is dismissed for making a protected disclosure is regarded as unfairly dismissed.

Enforcing Rights

There is no minimum qualifying period of employment required for an employee to bring a claim in the Employment Tribunal, in respect of either of these potential claims, but the claim must be received by the Tribunal within 3 months of the dismissal or detriment, or within the extended period provided for through the compulsory ACAS conciliation procedure which requires anyone bringing a claim to register for pre claim conciliation first.

Before sending a claim to the Employment Tribunal the employee must have a certificate from ACAS confirming that conciliation has been attempted. In some circumstances, the time for bringing a claim can be extended as long as the employee has registered for pre claim conciliation with ACAS, using the mandatory ACAS conciliation procedure within 3 months of the date of the incident complained of, but there are still strict time limits for the employee to submit the claim to the Employment Tribunal once that period of conciliation has come to an end.

Any claim to an Employment Tribunal must include certification from ACAS that conciliation has been attempted and must be accompanied by the Employment Tribunal fee or a valid and fully evidenced application for a fee remission. If any of these are missing, or if the application form has not been correctly completed or if documents or information is missing, the application will not be accepted and it will be returned to the employee.

Links

ACAS guidance

Disclaimer

Please note that the information on this page is intended to be a guideline and is therefore a summary of the law only and not a complete guide. Before taking any action based on this information you are strongly advised to take legal advice. Whilst every effort has been made to ensure that the information contained on this page is up to date and accurate, no guarantee can be given to this effect.

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