There are three requirements for whistleblowing:
A qualifying disclosure
A protected disclosure
Protection for the worker
Qualifying disclosure
The six categories are outlined in s43B(1) of the Employment Rights Act 1996:
(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 he is 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 the preceding paragraphs has been, is being or is likely to be deliberately concealed.
The standard for the work is subjective and they must show a reasonable belief; Baluba v Waltham Forest College (2007)
Protected disclosure
The worker must also have a reasonable belief that the disclosure is in the public interest and factors include (Chesterton Global Ltd v Nurmohamed [2017]):
- the numbers in the group whose interests the disclosure served;
- the nature of the interests affected and the extent to which they are affected by the wrongdoing disclosed;
- the nature of the wrongdoing disclosed;
- the identity of the alleged wrongdoer.
A disclosure must be made to:
- The employer or, where relevant, the person responsible for the wrongdoing
- A solicitor in the course of obtaining legal advice
- A Minister of the Crown (where the employer is appointed under enactment)
- A prescribed person (eg regulatory bodies, local authorities)
It has to be reasonable for the worker to make the disclosure and so we look at:
- the worker’s belief that the allegation are true
- whether the disclosure is made for personal gain
- the seriousness of the wrongdoing
Protection of the worker
An employee cannot be dismissed because they have made a public interest disclosure and doing so is protected under Art 10 of the European Convention on Human Rights (freedom of expression); Heinsich v Germany [2011]
