WHISTLEBLOWING!

by

Ryan Clement, barrister

IN THIS BLOG I discuss Protected Disclosures aka ‘whistleblowing’ within the context of employment, which is what a whistleblower has to make in order to be protected from suffering a detriment or be dismissed because they ‘whistleblew.’

A PROTECTED DISCLOSURE is a qualifying disclosure that is made by a worker to, for example, their employer or a body that has legal responsibility for the employer or a person, working for the employer. Such as, for example, for schools, doctors and social workers, it would be Ofsted, the General Medical Council and Social Work England.

So, if you make a qualifying disclosure to someone outside of those bodies, as interesting as the disclosure might be to the recipient, it will not amount to a protected disclosure. Beware!

So, what is a qualifying disclosure? It is 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— 

(a) that a criminal offence has been committed, is being committed or is likely to be committed,

(b) that a person has failed, is failing or is likely to fail to comply with any legal obligation to which they are subject,

(c) that a miscarriage of justice has occurred, is occurring or is likely to occur,

(d) that the health or safety of any individual has been, is being or is likely to be endangered,

(e) that the environment has been, is being or is likely to be damaged, or

(f) that information tending to show any matter falling within any one of those I have mentioned has been, is being or is likely to be deliberately concealed.

NOTABLY, it is immaterial whether the relevant failure occurred. So, it is no defence to say that the alleged wrongdoing did not occur so the whistleblower was fairly dismissed. No, one would still be liable if the disclosure, which would have been in the public interest, was made in the reasonable belief of the worker making it. HOWEVER, a disclosure of information is not a qualifying disclosure if the person making the disclosure commits an offence by making it.

TO SUM UP, Firstly, there must be a disclosure of information. Secondly, the disclosure must be a qualifying one. Thirdly, in order to be protected it must be made to the appropriate authority, such as, for example, one’s employer.

Copyright © Ryan Clement 2024