This website uses non-intrusive cookies to improve your user experience. You can visit our cookie privacy page for more information.

Whistleblowing and whistleblowers

Summary

This guidance replaces OC 109/1. It explains the legal protection afforded workers who are victimised or dismissed for 'blowing the whistle' on their employers. This may include health and safety concerns reported to HSE. HSE has no enforcement role under the whistleblowing legislation but is one of the bodies to which a ‘protected disclosure’ can be made.

Introduction  

Protection for ‘whistleblowers’ was established by  the Employment Rights Act 1996 (ERA). It introduced rights of protection for workers not to suffer detriment or dismissal for raising concerns ('blowing the whistle') on their employers' fraudulent, criminal or dangerous activities.

ERA was amended by the Public Interest Disclosure Act 1998 (PIDA) and later by the Enterprise and Regulatory Reform Act 2013 (ERRA). The effect has been to clarify what constitute “protected disclosures”, what classes of person are protected, and how disclosures can be made.

One of the categories of disclosure includes information tending to show that the health or safety of any individual has been, is being or is likely to be endangered and as HSE is one of the bodies to which a protected disclosure can be made.

Action

All Staff should:

Background

Most complaints from individuals received by HSE will be protected disclosures. Complaint handling procedures already take into account the need to protect complainants by offering anonymity.

If an individual makes a claim to a tribunal on the grounds of victimisation by his employer after raising a concern, the tribunal will, amongst other matters, take into account the response received by the individual in terms of feedback on their concerns. It is therefore important to take complainants' details so that they can be told the outcome of any investigation.

HSE has no arbitrating or enforcing role in relation to “whistleblowing” legislation ; this is explicitly the responsibility of Employment Tribunals.  The procedure for making claims to an Employment Tribunal invites claimants to indicate whether they want a copy of the claim form, or information from it, to be forwarded on their behalf to a relevant regulator (known as a ‘prescribed person’). HSE is a prescribed person under this legislation. 

In some circumstances, a worker claiming to have been unfairly dismissed may (within 7 days) seek an interim order so that employment continues or is deemed to continue, until the full hearing of the tribunal.

See Appendix 1 for further details of the legal requirements.

Organisation

No special organisational requirements.

Further References

Public Concern at Work is an independent charity that provides free advice and assistance to concerned individuals and guidance to employers about setting up effective internal whistleblowing systems:

Public Concern at Work
3rd Floor, Bank Chambers
6-10 Borough High Street
LONDON SE1 9QQ
Tel: 020 7404 6609
Fax: 020 74038823

Contacts   

FOD Legal and Enforcement Team

Appendix 1: application and scope of whistleblowing law

People covered

Subject to some limited exceptions, whistleblowing law protects all workers, regardless of age and length of employment. It covers:

It does not cover:

Qualifying disclosures

A qualifying disclosure is defined as 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:

The worker must ordinarily work in Great Britain to invoke these provisions, but they also apply to malpractice occurring outside the UK. For example, an employee, working in Great Britain for a multi-national company who discloses to an appropriate person, malpractice in another office of the company outside the UK, would be protected.

The breach of law that is the subject of a disclosure need not be UK law.

Any provisions in agreements, eg confidentiality clauses or agreements to refrain from instituting proceedings for breach of contract cannot preclude a worker from making a 'protected disclosure'.

The disclosure of information by a worker which in itself constitutes a crime, e.g. disclosure under the Official Secrets Act, is not a qualifying disclosure.

Disclosure of information which is subject to legal professional privilege in England & Wales or confidentiality between client and legal adviser in Scotland, is not a qualifying disclosure if it is made by a person receiving that information as legal advice.

To whom can the concern be disclosed?

Workers will only be protected if they raise their concerns:

Wider disclosure

In addition to making a disclosure to the persons described above, in certain circumstances a worker can make a 'wider disclosure'. This includes disclosures made to the police, the media, MPs and non-prescribed regulatory bodies.

In these circumstances the disclosure will only be protected if:

Note, to be 'protected', the tribunal will take into account whether the worker followed the employer's internal whistleblowing procedures and any response the worker received from the employer and/or the prescribed person.

In determining whether it is reasonable for the worker to make the disclosure, regard shall be had to:

Further, depending on the circumstances, regard shall be had to:

Victimisation

Victimisation is, detriment or dismissal suffered by an individual as a result of making a 'protected disclosure'. Examples of detriment include:

Employees can make a claim for unfair dismissal under the existing (ERA) legislation.

Updated 2015-09-25