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What disclosures qualify for protection?

The Public Interest Disclosure Act provides a legal remedy for a worker who has suffered detrimental treatment or has been dismissed as a result of whistleblowing. However, there are a number of elements that you will have to demonstrate in order to make a claim.

You will need to show (a) that you made a qualifying disclosure (b) that you made the disclosure in the correct way to be protected by the law and (c) that there is a causal link between you making the disclosure and the treatment you then received (either detriment or dismissal).

What is a qualifying disclosure and what are the categories of wrongdoing?

You will need to demonstrate that you made a disclosure which you reasonably believe is made in the public interest, of information that tends to show :

crime has been or is likely to be committed;

a person has failed or is likely to fail to comply with any legal obligation to which they are subject;

miscarriage of justice has occurred or is likely to occur;

the health and safety of any individual has been or is likely to be endangered:

the environment has been or is likely to be damaged; or

cover up of any of the above. (S43B ERA 1996)

What is reasonable belief?

What is reasonable belief?

Case law has established that it is not necessary for the information you disclose to be correct, so you do not have to wait until you can prove your concern, but you must reasonably believe that  your concern falls within one of the above categories.  It may be easier to establish your belief was reasonable if it is something  you have witnessed, rather than heard second hand, but there is little case law on this. If you raise a concern which turns out to be wrong, PIDA will still apply if you can show that despite being incorrect, it was reasonable to believe you were correct at the time.

What is the public interest?

Public interest would generally mean that a concern has an impact on more than one individual's employment contract (which may be better dealt with by a grievance).   However, there may be matters which affect both you and other individuals, and for which there is sufficient public interest.   For example, if you are being bullied then that's about  your private contract.  But if your team is being bullied, people are off work with stress and your vulnerable clients are at risk as a result, that may engage the public interest.  There are no hard and fast rules but in the case of Chesterton v Nurmohamed the Court of Appeal identified four factors that may be relevant:
1)            the numbers in the group whose interests the disclosure served (the larger the group, the more likely that the public interest is engaged);
2)            the nature of the interests affected and the extent to which they are affected by the wrongdoing disclosed;
3)            the nature of the wrongdoing disclosed (a more serious wrongdoing is more likely to be in the public interest); and
4)            the identity of the alleged wrongdoer.

If in doubt, seek advice.

What does it mean by “information”?

Information needs to be more than just an opinion about wrongdoing and generally is something that conveys some facts.  However, the context in which you raise concerns may be relevant.    It is for a tribunal to decide whether there has been a disclosure of information.  It doesn’t matter if the employer or person to whom you disclose the information is already aware of the matter.

When you are making a claim you need to identify what disclosure you have made.  For example “I raised a concern about the lack of health and safety equipment on 1 October 2018 by sending an email to my line manager explaining that the hoist was broken and it wasn’t safe to lift patients”.

What sort of disclosures are not protected?

If you break the law by disclosing information, for example under the Official Secrets Act, your disclosure will not be protected.  If you have been involved in the wrongdoing, making a disclosure won't protect you from any repercussions eg prosecution, dismissal for the wrongdoing itself.  If you make a disclosure in an unreasonable way, for example in an aggressive manner, or if you disclose to the wrong party (such as a competitor), your employer may fairly dismiss you for acting unreasonably.  If in doubt - seek advice.