Handle whistleblowing and protected disclosures

Whistleblowing law protects workers who report wrongdoing in the workplace.

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.

Your obligations come from the Employment Rights Act 1996 Part IVA (as inserted by the Public Interest Disclosure Act 1998), and an effective whistleblowing culture helps you meet them.

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.

For 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

Why this matters for employers

You may have whistleblowing obligations towards people who are not your employees, including:

• agency workers who disclose wrongdoing in your workplace, whom you must not subject to detriment
• some contractors, who may be 'workers' depending on the reality of the relationship rather than the contract
• trainees and people on work experience placements

If in doubt about whether someone is covered, assume they are and handle their disclosure properly.

How disclosures become protected

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:

• the dismissal is automatically unfair, and a fair procedure or fair reason is no defence
• the employee can claim from their first day, with no qualifying period of service
• there is no cap on the compensatory award, unlike ordinary unfair dismissal

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 anyone for whistleblowing
• keep the worker's identity confidential where they ask, although you cannot guarantee anonymity in every case
• not try to enforce confidentiality terms that would stop a protected disclosure

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
• name a senior person to receive and investigate disclosures
• offer other channels in case the concern is about the worker's line manager
• train managers to recognise and handle disclosures
• watch for subtle detriment after a disclosure
• report whistleblowing activity and outcomes to the board

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

• Tell workers you will protect their identity as far as possible, but cannot guarantee complete confidentiality.
• Limit knowledge of the worker's identity to people who genuinely need it for the investigation.
• Never threaten action over a disclosure or try to enforce an NDA against whistleblowing, because that could itself be detriment.

Creating a whistleblowing policy

Handling a disclosure

When a worker raises a concern that may be a protected disclosure:

1. Take it seriously. Even if the concern seems minor or unfounded, the worker is legally protected for raising it.
2. Confirm receipt promptly and explain what happens next.
3. Decide whether it is a qualifying disclosure (wrongdoing in the public interest) or a personal grievance, which goes through your grievance procedure.
4. Investigate in proportion to the seriousness of the concern.
5. Watch for any detriment, including subtle changes in how managers or colleagues treat the worker.
6. Tell the worker what you found and what action you took, within the limits of confidentiality about third parties.
7. Record the disclosure, investigation and outcome, because 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 is one of the 'automatically unfair' reasons for dismissal under the Employment Rights Act 1996, so the employee needs no qualifying period of service to claim.

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.

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.