Whistleblowing disclosures are protected under statute. It is automatically unfair to be subjected to a detriment for ‘blowing the whistle’. This includes detriments such as a demotion, denial of access to resources, or even dismissal. As employment law specialists, we have great experience advising on whistleblowing claims.
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Who is protected?
Whistleblowing protection is available for all employees, workers, trainee’s, agency workers and Limited Liability Partnership members.
Unlike a claim for unfair dismissal, employees are protected from whistleblowing-related dismissal regardless of their length of service – there is no two year requirement, it is automatically unfair.
When are you protected?
Not every disclosure amounts to a whistleblowing disclosure. There is a strict legal test to determine whether your disclosure is protected under whistleblowing legislation.
The disclosure must amount to a ‘qualifying’ disclosure. This means, the disclosure is in relation to either:
– A criminal offence;
– Failure to comply with a legal obligation;
– Miscarriage of justice;
– Endangerment of an individual’s health and safety;
– Environmental damage;
– Deliberate concealment of one of the above.
The disclosure can take place in any reasonable form e.g. telephone, letter, e-mail. However, the disclosure must actually be made. It would not be sufficient for you to have this information and not actually act upon it. It cannot be a thought or something that you were yet to disclose before dismissal.
The disclosure must also be in the public interest. Every whistleblowing disclosure is unique, therefore each situation would need to be reviewed on its own merits. Various factors are taken into consideration, such as the nature of the employer’s business, the number of people impacted, the people involved, etc.
The disclosure must be made in good faith. Again, each disclosure must be reviewed on its own merits. For example, an employee cannot be dismissed, make a disclosure of a criminal offence, and seek to rely on that disclosure as the basis for an automatic unfair dismissal claim when it is unrelated.
How to make a disclosure?
Your employer is likely to have a whistleblowing policy – this is a good starting point to find the correct person to notify of your disclosure. Alternatively, you may wish to blow the whistle to your line manager, a senior figure at the business (e.g. a Director) or an external regulatory business (e.g. Care Quality Commission).
For further guidance on blowing the whistle please contact our team of employment lawyers.
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