Whistleblowing in the UK is governed primarily by the Public Interest Disclosure Act 1998 (PIDA). This law provides protection to workers who “blow the whistle” on wrongdoing within their organisation. A disclosure is considered protected if it reveals information that, in the reasonable belief of the worker, tends to show one or more of the following:
- A criminal offense
- Breach of a legal obligation
- Miscarriage of justice
- Danger to the health and safety of any individual
- Damage to the environment
- The deliberate concealment of information about any of the above
Disclosures should usually be made to the employer first, allowing them to address the issue internally. If internal reporting is not possible or if the worker reasonably believes that internal reporting will lead to negative consequences, disclosures can be made to external bodies, such as regulators or legal advisors. The whistleblower must believe that the information is substantially true and that they are acting in good faith.
The Enterprise and Regulatory Reform Act 2013 introduced further changes, such as the requirement for disclosures to be made in the public interest, meaning personal grievances are generally excluded from protection unless they also have a broader public interest.
It’s also important to note that the use of gagging clauses in settlement agreements cannot legally prevent workers from making a protected disclosure.
Protection from detriment and tribunal claims
Workers are protected from dismissal, victimisation or any other form of detriment (e.g., demotion, harassment), as a result of making a protected disclosure. If a worker is dismissed for making a protected disclosure, it is automatically considered an unfair dismissal, and there is also no minimum service requirement to bring a claim.
There is no upper limit on the amount of compensation that can be awarded in cases of unfair dismissal related to whistleblowing. Compensation can include financial losses as well as damages for injury to feelings.
Understanding these laws is crucial for workers who are considering whistleblowing, as well as for employers who need to ensure they are compliant with these protections.
The annual number of claims related to whistleblowing, rose by 92% between 2015 and 2023 within the tribunal system.
Whistleblowing issues are increasingly being taken to tribunals instead of being addressed within the workplace. Employers are often responding by penalising whistleblowers rather than addressing the concerns raised. As a consequence, disputes are ending up in a costly tribunal because internal processes have failed. Although it can be difficult to bring a successful whistleblowing claim, as highlighted in recent cases in the Employment Appeal Tribunal, it can create a toxic and unsafe work environment if the issues are not dealt with properly on a long term basis.
How to approach whistleblowing claims
Approaching whistleblowing claims requires careful consideration to ensure that the concerns raised are handled effectively, fairly and legally:
Establish a clear policy
To ensure the organisation has a clear, accessible whistleblowing policy that outlines how employees can raise concerns, what protections they have and the process for investigating claims. Employees should be regularly trained and informed about the whistleblowing policy, emphasising that whistleblowers will be protected from retaliation.
Encourage internal reporting
By providing safe reporting channels and offering multiple channels for employees to report concerns, such as anonymous hotlines, dedicated email addresses, or in-person meetings with HR or designated officers. Organisations should also foster a supportive culture where employees feel safe to speak up without fear of retaliation.
Acknowledge and assess the claim
As soon as it is made, acknowledge receipt to the whistleblower, assuring them that their concern will be taken seriously. Then quickly assess whether the issue raised falls within the definition of a protected disclosure and if it warrants further investigation.
Conduct a fair and confidential investigation
Appointing an independent investigator. If the claim is valid, assign an impartial investigator to handle the case. This could be someone from within the organisation or an external consultant, depending on the severity of the claim. Ensure the investigation is conducted confidentially to protect both the whistleblower and those involved. Finally, collect relevant documents, interview witnesses, and review the facts objectively to determine if the claims are substantiated. There are new initiatives that can independently coordinate potential whistleblowing claims such as The Healing Process, which was implemented by NHS Highland.
Take appropriate action
If the investigation confirms wrongdoing and take appropriate remedial action. This might include disciplinary measures, changes in procedures, or other corrective steps. Also inform the whistleblower of the outcome to the extent possible, while maintaining confidentiality where required.
Protect the whistleblower
By ensuring they are protected from any form of retaliation, such as demotion, dismissal, harassment, or discrimination. Also, continuously monitor the whistleblower’s situation to ensure no adverse consequences arise as a result of their disclosure.
Document and review
All steps taken from the initial claim through to the resolution, including the investigation process, findings and any actions taken. You should then regularly review whistleblowing cases to identify patterns and learn from them, improving policies and processes where necessary.
Consider external reporting
If internal mechanisms fail or if the issue is particularly severe, advising the whistleblower on how to make a disclosure to an external body, such as a regulatory authority, while still protecting their rights.
Seek legal advice
If a whistleblowing claim is complex or could lead to significant legal implications to ensure compliance with the law and to protect all parties involved.
Communicate lessons learned
From whistleblowing cases with the wider organisation, ensuring confidentiality. This can help to demonstrate that concerns are taken seriously and that the organisation is committed to ethical conduct.
By following these steps, organisations can handle whistleblowing claims effectively, ensuring that they address concerns responsibly while protecting the rights of all involved.
