Whistleblowing
Claims

• Crime
• Environmental damage
• Infractions re health & safety
• Miscarriages of justice
• Non-compliance with a legal duty
• Sexual harassment
• Cover ups in relation to the above

An employee can make a protected disclosure against their employer so long as they have a reasonable belief that disclosure is in the public interest. The disclosure can be made either to their employer or a “prescribed person” (e.g. regulatory authority). They can make the disclosure public (e.g. by notifying the press) only once they have first disclosed it to their employer or a prescribed person and they have reasonable reason to believe that no effective action was going to be taken. Alternatively, they can make it public should they not have disclosed it first to their employer or the prescribed person if the reason for not disclosing it to them was that they have a reasonable cause to fear reprisals should they do so, or that evidence would be tampered with or disappear. Where the offence is especially serious, an employee may disclose it in to the public arena without first having to disclose it to their employer or a prescribed person.

Should an employee be dismissed or selected for redundancy as a direct result of making a protected disclosure (i.e. whistleblowing), then the dismissal would be deemed automatically unfair. Moreover, individuals can now be held personally liable for subjecting a whistleblower to detriment, by including the individual (e.g. such as a director of the employer) in the Employment Tribunal claim. Furthermore, an employer can be held vicariously liable for the actions of workers who subject a colleague making a protected disclosure to any detriment, unless the employer can show that they took all reasonable steps to prevent those workers from subjecting them to that detriment. However, whilst this may be a defence against vicarious liability, the co-workers who subjected the whistleblower to detriment may still be held personally liable. What all this means is that an employee who is subjected to a detriment by their employer and/or co-workers for having made a protected disclosure/blown the whistle, can claim compensation for this, even if they have neither resigned nor been dismissed. Essentially, they can make a claim for victimisation whilst still employed.

Should an Employment Tribunal determine that the disclosure had been made by the employee in bad faith, then the Tribunal has the power to reduce compensation by up to 25%.

The Meaning of ‘Detriment’

Detriment amounts to any conduct which objectively places the whistleblower at a disadvantaged in terms of their continued employment.