Guide
Whistleblowing: protected disclosures and employer duties
How to handle whistleblowing disclosures as an employer. Covers what qualifies as a protected disclosure, your legal obligations, protection from detriment and dismissal, and how to create an effective whistleblowing policy.
Whistleblowing law protects workers who report wrongdoing in the workplace. As an employer, you must understand when disclosures are protected, what protections workers have, and how to handle concerns appropriately.
Getting this wrong is expensive. Dismissing someone for whistleblowing is automatically unfair from day one of employment, and compensation is uncapped. Beyond the legal risks, mishandling whistleblowing can damage your reputation and allow serious problems to fester.
This guide explains your legal obligations under the Employment Rights Act 1996 Part IVA (as inserted by the Public Interest Disclosure Act 1998) and how to create an effective whistleblowing culture.
What qualifies as a protected disclosure
Not every workplace complaint is a protected disclosure. Whistleblowing law protects disclosures about specific types of wrongdoing that affect the public interest, not personal grievances.
The public interest test
Since 2013, disclosures must be made 'in the public interest' to qualify for protection. This means the wrongdoing must affect others beyond the individual worker - for example, other employees, customers, or the general public.
Example: A worker reporting that they personally are being underpaid the National Minimum Wage is making a personal grievance. But if they report that the employer systematically underpays all staff below NMW, this affects many people and is likely in the public interest.
The test is whether the worker reasonably believes the disclosure is in the public interest at the time they make it. A tribunal will consider the number of people affected, the nature of the wrongdoing, and the worker's motive (though motive is not decisive).
Who is protected by whistleblowing law
Whistleblowing protection extends beyond employees to cover a wide range of workers, including some who would not normally have employment rights.
Why this matters for employers
You may have whistleblowing obligations towards people who are not your employees, including:
- Agency workers: If agency workers make disclosures about wrongdoing in your workplace, you cannot subject them to detriment
- Contractors: Some contractors may be 'workers' depending on the nature of the relationship - look at the reality, not just the contract
- Trainees: Work experience placements and trainees are protected
If in doubt about whether someone is covered, assume they are and handle their disclosure properly.
How disclosures become protected
A qualifying disclosure only becomes a 'protected' disclosure when made through an authorised route. The protection available depends on who the worker discloses to.
Internal disclosures are preferred
The law encourages workers to raise concerns internally first. Disclosures to employers have the fewest conditions attached - the worker only needs to reasonably believe the information tends to show wrongdoing and is in the public interest.
If workers go straight to regulators or the media, they must meet additional conditions. Creating a culture where workers feel safe raising concerns internally protects both them and you.
When workers can go external
Workers can make protected disclosures to prescribed persons (regulators) if they reasonably believe the information is substantially true. They can make wider disclosures (to media, MPs, etc.) only if:
- They have already raised the concern internally or with a regulator, OR
- They reasonably believe they would suffer detriment if they disclosed internally, OR
- They reasonably believe evidence would be concealed or destroyed
A worker who goes straight to the media without trying internal channels first risks losing protection, unless the failure is exceptionally serious.
Protection from detriment and dismissal
The core of whistleblowing law is protection from unfavourable treatment. Workers who make protected disclosures must not suffer any detriment or be dismissed as a result.
The consequences of getting it wrong
If you dismiss someone for making a protected disclosure:
- Automatically unfair: The dismissal is automatically unfair - no defence of fair procedure or fair reason
- No qualifying period: Day-one employees can claim - no 2-year service requirement
- Uncapped compensation: Unlike ordinary unfair dismissal, there is no cap on the compensatory award
- Minimum basic award: A minimum basic award applies (£8,763 for 2025/26) applies
Even if you do not dismiss the worker, subjecting them to any detriment can result in an employment tribunal claim with potentially unlimited compensation.
Vicarious liability
If one of your employees subjects a whistleblower to detriment, you can be vicariously liable as the employer - unless you took all reasonable steps to prevent it. This includes training managers to handle disclosures appropriately and having clear policies against victimisation.
Your employer obligations
What the law requires
The law does not require you to have a written whistleblowing policy, but it does require you to:
- Not subject workers to detriment: For making protected disclosures
- Not dismiss for whistleblowing: This is automatically unfair regardless of service length
- Maintain confidentiality: Where the worker requests it (though you cannot guarantee anonymity in all circumstances)
- Not enforce gagging clauses: Confidentiality terms cannot prevent protected disclosures
What good practice requires
Beyond the legal minimum, responsible employers should:
- Have a written policy: Setting out how to raise concerns and how they will be handled
- Designate a senior person: To receive and investigate disclosures
- Offer alternative channels: In case the concern is about the worker's line manager
- Train managers: To recognise and handle disclosures appropriately
- Monitor for victimisation: Watch for subtle detriment after disclosures
- Report to the board: On whistleblowing activity and outcomes
Prescribed persons - regulatory reporting
Workers can make protected disclosures directly to regulators without going through internal channels. You should inform workers which regulators are relevant to your sector:
While you might prefer workers to raise concerns internally first, you cannot require this. Making it difficult or discouraging workers from contacting regulators could itself constitute detriment.
Confidentiality and gagging clauses
Workers often want to report concerns confidentially. While you should respect confidentiality requests, you cannot guarantee complete anonymity - particularly if the matter leads to legal proceedings.
Practical guidance on confidentiality
- Explain the limits: Tell workers you will protect their identity as far as possible, but cannot guarantee absolute confidentiality
- Need-to-know basis: Limit knowledge of the worker's identity to those who genuinely need to know for the investigation
- Settlement agreements: If including confidentiality terms, explicitly carve out protected disclosures to avoid uncertainty
- Do not attempt to silence: Threatening action for making disclosures, or attempting to enforce NDAs against whistleblowing, could itself be detriment
Creating a whistleblowing policy
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Commit to protection
State clearly that workers will not suffer detriment for raising genuine concerns in good faith. This sets the tone and encourages reporting.
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Define scope
Explain what types of concerns the policy covers (the six categories of qualifying disclosure) and distinguish from personal grievances, which should use the grievance procedure.
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Set out reporting channels
Provide multiple routes for raising concerns: line manager, designated senior person, non-executive director, or external helpline. This ensures workers can report even if the concern is about their manager.
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Explain the process
Describe what will happen when a concern is raised: acknowledgement within X days, investigation, outcome communicated, and how the worker can escalate if unsatisfied.
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Address confidentiality
Commit to protecting the worker's identity as far as possible while being honest that complete anonymity cannot always be guaranteed.
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Reference external reporting
Acknowledge that workers can report to prescribed persons (regulators) and should not face detriment for doing so, even if they did not report internally first.
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Review and communicate
Review the policy annually, train managers on their responsibilities, and ensure all workers know how to access it.
Handling a disclosure
When a worker raises a concern that may be a protected disclosure:
- Take it seriously: Even if the concern seems minor or unfounded, the worker has legal protection for raising it
- Acknowledge promptly: Confirm receipt and explain what happens next
- Assess carefully: Determine whether it is a qualifying disclosure (wrongdoing in the public interest) or a personal grievance (use grievance procedure)
- Investigate proportionately: The investigation should be proportionate to the seriousness of the concern
- Protect from victimisation: Monitor for any detriment, including subtle changes in treatment by managers or colleagues
- Communicate the outcome: Tell the worker what you found and what action you took (within limits of confidentiality about third parties)
- Keep records: Document the disclosure, investigation, and outcome - you may need to show you acted reasonably
If the disclosure is not protected
If you conclude a disclosure does not meet the criteria for protection (for example, it is a personal grievance with no public interest element), you can still address the underlying concern through appropriate processes. Be cautious, however:
- The worker may disagree with your assessment - a tribunal might later find it was protected
- Even if not technically protected, victimising someone for raising concerns creates a poor culture
- If the disclosure was made in good faith, consider treating it as protected regardless
Link to unfair dismissal
Whistleblowing dismissal is one of the 'automatically unfair' reasons for dismissal under the Employment Rights Act 1996. This means:
If you are considering dismissing someone who has made a disclosure, take extreme care. Even if you have other reasons for the dismissal, a tribunal will examine whether whistleblowing was the 'principal reason'. If whistleblowing was a significant factor in your decision, the dismissal will be automatically unfair.
Practical tip: If a worker has made a protected disclosure, any subsequent performance management or disciplinary action should be:
- Well-documented and based on clear, objective evidence
- Clearly unconnected to the disclosure
- Proportionate and consistent with how you treat other employees
If there is any perception that action is connected to the disclosure, you risk an automatically unfair dismissal claim with uncapped compensation.