There are a number of conditions which must be satisfied before a communication will be considered a qualifying and protected disclosure for the purposes of the whistleblowing provisions of the Employment Rights Act 1996 (ERA 1996).
Firstly, what do we mean when we say a “qualifying disclosure”?
The law says that a “qualifying disclosure” is a disclosure of information which, in the reasonable belief of the worker making it, is made in the public interest and tends to show one or more of the following has been committed, is being committed or is likely to be committed:
(a) a criminal offence,
(b) a failure to comply with any legal obligation,
(c) a miscarriage of justice,
(d) endangering the health or safety of any individual,
(e) damaging the environment, or
(f) deliberately concealing information in respect of any of the above.
There are clearly three elements which must be met before a disclosure will be a qualifying disclosure:
- there must be a disclosure of information;
- the worker must believe that the disclosure is made in the public interest (and this belief must be reasonably held); and
- the worker must believe that the disclosure tends to show one or more of the matters listed above (and this belief must also be reasonably held).
Each of these conditions must be met. If one condition is not met, the disclosure will not be a qualifying disclosure for the purposes of the whistleblowing legislation. Demonstrating that the employee has made a qualifying disclosure is the first step in establishing protection under the whistleblowing legislation.
So, what amounts to a disclosure of information? Well, this term in and of itself is not defined so we must look to case law for assistance and previous tribunal judgments tell us that a disclosure must convey facts. It could be facts relayed during a conversation (a verbal disclosure) or set out in a written letter; it could even take the form of a recording. What is key is that there is a disclosure of information, simply voicing a concern or making a general allegation that there has been a “breach of health and safety”, for example, will not be enough.
It is important to be aware that a worker does not have to prove that the facts or allegations disclosed are true, or that they are capable in law of amounting to one of the categories of wrongdoing listed in the legislation. As long as the worker subjectively believes that the relevant failure has occurred or is likely to occur and their belief is, in the tribunal’s view, objectively reasonable, it does not matter that the belief subsequently turns out to be wrong, or that the facts alleged would not amount in law to the relevant failure.
Furthermore, a disclosure can only be a qualifying disclosure if the worker reasonably believes that the disclosure is “made in the public interest”.
Does it automatically follow that every qualifying disclosure is also a protected disclosure?
To also be a protected, the disclosure must be made to the right person and the legislation favours disclosure to the worker’s employer in the first instance. Qualifying disclosures made to legal advisers “in the course of obtaining legal advice” are also protected. As are disclosures to Government Ministers and Prescribed Persons. Protection is subject to certain conditions, which vary according to which category of person the disclosure is made to.
If any wider qualifying disclosures are made, for example to the press, then more stringent conditions must be met before the disclosures are to be protected:
- The worker must reasonably believe that the information disclosed, and any allegation contained in it, are substantially true.
- The worker must not make the disclosure for the purposes of personal gain.
- The worker must have previously disclosed substantially the same information to their employer or to a prescribed person; or
- reasonably believe, at the time of the disclosure, that they will be subjected to a detriment by their employer if they make disclosure to the employer or a prescribed person; or
- reasonably believe (where there is no prescribed person) that material evidence will be concealed or destroyed if disclosure is made to the employer.
- In all the circumstances of the case, it must be reasonable for them to make the disclosure.
What should an employer do if an employee raises whistleblowing concerns?
It is important to encourage a culture of openness within the workplace, so that your employees are not afraid to raise concerns. It is also helpful for employers to include a Whistleblowing policy in their Staff Handbook so that employees know the process they need to follow to raise concerns and how their employer will deal with any complaints.
In terms of process, any allegations of wrongdoing should be taken seriously and should be addressed promptly. Once an individual has raised an issue about suspected malpractice to their line manager (or somebody else if reporting it to their line manager is not an option), a meeting should be held with that individual to discuss the concerns in detail. A full and thorough investigation should be carried out in to the issues raised and appropriate action taken in the event the allegations are found to be established.
Just Employment Law are employment law specialists with expertise in assisting employers with a wide range of employment matters including Employment Tribunal and Employment Appeal Tribunal representation. If you are interested in learning more about our services, contact us on 0141 331 5150 to speak to one of our solicitors based in Glasgow. You can also visit our website at https://www.justemploymentlaw.co.uk.
