Whistleblowing and Retaliation at Work

For a disclosure to qualify for whistleblowing protection, it must be a disclosure of information (not merely an allegation or expression of opinion) that the worker reasonably believes tends to show one or more of six types of wrongdoing, and the disclosure must be made in the public interest. The six categories are: criminal offences, breach of legal obligations, miscarriages of justice, dangers to health and safety, environmental damage, and deliberate concealment of any of these. The disclosure must be made to an appropriate person — typically the employer in the first instance, though disclosures to prescribed persons (such as regulators), legal advisors, and in certain circumstances to the wider public, are also protected. Retaliation can take many forms, from dismissal to more subtle detriments such as being passed over for promotion, being excluded from projects, or having responsibilities removed.

Common situations include: being dismissed shortly after reporting health and safety concerns, being subjected to disciplinary action after raising concerns about financial irregularities, experiencing a hostile working environment after reporting regulatory breaches, being moved to a less desirable role after disclosing information about illegal practices, having hours reduced or shifts changed after raising concerns, and being ostracised or excluded by colleagues and management after making a disclosure.

The Public Interest Disclosure Act 1998 (PIDA) inserted provisions into the Employment Rights Act 1996 (sections 43A to 43L) that protect workers who make qualifying disclosures. Section 43B defines a qualifying disclosure. Section 47B protects workers from being subjected to any detriment by their employer on the ground that they have made a protected disclosure. Section 103A provides that dismissal for making a protected disclosure is automatically unfair, with no qualifying service period required and no cap on compensation. Section 43C to 43H set out the circumstances in which disclosures to various recipients are protected. The prescribed persons list (to whom disclosures may be made) is maintained by the government and includes regulators such as the FCA, HSE, CQC, and HMRC.

People who have made or are considering making a whistleblowing disclosure often think about whether the disclosure meets the legal test for protection — particularly whether it is in the public interest and whether it is a disclosure of information rather than a general complaint. Some consider making the disclosure to the employer first, as this is often the simplest route to protection, while others may need to consider disclosing to a prescribed person or regulator if they reasonably believe the employer will not address the concern. Keeping detailed records of the disclosure and any subsequent treatment is widely considered important. Seeking advice from a solicitor specialising in whistleblowing cases, or from the charity Protect (formerly Public Concern at Work), may help clarify the options.

Common mistakes include: not framing the disclosure as a public interest concern (personal grievances are generally not protected), making disclosures to the media or public without first attempting internal or regulatory channels (which may affect whether the disclosure is protected), not keeping written records of when and how the disclosure was made, failing to recognise subtle forms of retaliation such as being excluded from opportunities, and missing the three-month less one day time limit for bringing tribunal claims.