If there is something at your workplace that causes you concern, you may wish or need to report it to someone. But will this be classified as ‘whistleblowing’? If so, can you be dismissed for whistleblowing?

What is ‘whistleblowing’?

The term relates to the reporting of certain types of wrongdoings at work. It must be in the public interest to disclose the wrongdoing, and that means it must affect others. If the report is made in the right way, it is known as a protected disclosure.

What counts as a protected disclosure?

To qualify as a protected disclosure, the alleged wrongdoing must show, or tend to show, the occurrence of one of the following:

• A criminal offence has been committed, is being committed, or is likely to be committed
• A person has failed, is failing, or is likely to fail to comply with any legal obligation to which they are subject
• A miscarriage of justice has occurred, is occurring, or is likely to occur
• The health or safety of any individual has been, is being, or is likely to be endangered
• The environment has been, is being, or is likely to be damaged
• Information tending to show any matter falling within any one of the above has been, is being, or is likely to be deliberately concealed.

Each case will be assessed according to the unique circumstances surrounding it, but the person making the disclosure must have sufficient information to substantiate the claim. What amounts to ‘sufficient information’ will also depend on the circumstances.

The person making the disclosure must genuinely and reasonably believe that whatever they are disclosing amounts to one of these types of wrongdoings and that it is in the public interest to make the disclosure.

Other things that will be considered include:

• the number of people affected by the wrongdoing
• the extent to which those people are affected.

Personal issues such as discrimination, bullying or harassment are not normally considered to be in the public interest, although they may be in some limited cases.

What protections are given to guard against being dismissed for whistleblowing?

If you make a qualifying protected disclosure you are known as a whistleblower. Whistleblowers are protected by law. You cannot and should not be dismissed or unfairly treated for whistleblowing. To receive this protection, you must be one of the following:

• an employee
• a trainee
• an agency worker
• a member of a Limited Liability Partnership.

Making a protected disclosure

For a qualifying disclosure to be protected, it must also be made to an appropriate or prescribed person or body. This can be the employer, or anyone within the company or organisation reasonably believed to be solely or mainly responsible for the relevant failure.

It is possible to make a protected disclosure to an outside person or agency. For example: the Director of the Serious Fraud Office, or Health and Safety Executive.

Before making a disclosure, the staff handbook should be consulted to see whether a whistleblowing procedure is in place. Ideally, this should be followed first.

If there are concerns about doing this, e.g. if it seems plausible that they may attempt to destroy the evidence, then the matter should be reported to an outside agency.

Whistleblowing and the media

If you report your concern to the media, you may likely lose the protections and legal rights extended to a whistleblower.

Is it possible to remain anonymous?

You can ask to remain anonymous, but you will still need to provide sufficient information about the wrongdoing which, in some cases, can make anonymity difficult to maintain.

Making a whistleblowing claim when treated unfairly

There are two ways to claim if you’ve been treated unfairly after making a protected disclosure.

• Claiming in respect of detrimental treatment by your employer
• If you are an employee, claiming unfair dismissal because of whistleblowing.

What counts as detrimental treatment?

There are a few things which may count as ‘detrimental treatment’. These include:

• not being considered for promotion
• being demoted or excluded from certain opportunities
• being harassed or bullied.

The harassment may be by someone other than your employer, like a fellow employee for whom your employer is responsible.

All workers can bring unfair dismissal claims for a whistleblowing detriment. You do not need to have served a qualifying period of employment before claiming.

What about being unfairly dismissed for whistleblowing?

Dismissal for whistleblowing is automatically unfair. If you are an employee, you may be able to claim unfair dismissal or constructive dismissal (if you were forced to leave). You do not need to have been employed for a certain amount of time.

Obtaining professional legal advice when faced with being dismissed for whistleblowing

To decide on a correct course of action, it can be helpful to first examine the circumstances of a whistleblowing case within a clear and accurate legal perspective.

At Springhouse, our team of experienced employment law solicitors have the legal expertise and knowledge to help you put you if you are considering making a report of wrongdoing, and to understand your rights in the event of a making a whistleblowing disclosure.

Being experts, they can also provide advice if you subsequently suffer detrimental treatment at work, or you are unfairly dismissed for whistleblowing.

For an initial discussion about your circumstances, get in touch with the team today.