Whistleblowing legal precedents

This case established that a circuit judge could qualify for protection under whistleblowing law. This is significant because judges are what the law calls ‘officer-holders’, who are not typically treated as being subject to employment law in the same way as employees or workers. 

Ms Gilham raised concerns with court administrators that funding cuts were having a detrimental effect on the functioning of the courts. After being bullied and undermined, she brought a claim in the Employment Tribunal, alleging she had been victimised for whistleblowing. 

The Supreme Court was asked to decide the question of whether a judge can be a ‘worker’ for the purposes of whistleblowing law. The court held that, though she was not technically a worker, her role as district judge was essentially analogous to one, and so she should be protected. To not give her protections would be a breach of her right to freedom of expression under Article 10 of the European Convention on Human Rights read in conjunction with Article 14 (the right to enjoy the Convention rights without discrimination because of some “other status”). 

This ruling has the potential in future to broaden the scope of whistleblowing law to other unprotected groups, such as trustees using human rights arguments. However, if and when the law will expand in this way is uncertain.  

There has already been one successful claim in the employment Tribunal (The Reverend D Green v The Lichfield Diocesan Board of Finance: 2409635/2022), where a member of the clergy (an office-holder) was successfully held to be a ‘worker’ by using  Gilham-style arguments. 

On the other hand, in Sullivan v Isle of Wight Council [2024] EAT 3 the Employment Appeals Tribunal decided that a job applicant was not a worker for the purposes of whistleblowing, rejecting a Gilham-style argument. 

The protections of whistleblowing law apply to workers who make ‘protected disclosures’, which is the legal term for whistleblowing. If your case goes to tribunal, you will need to convince the judge that you made protected disclosures. 

This case emphasised that, to be legally protected, a disclosure should contain sufficient and specific information. Whistleblowing law will not protect pure allegations – you must provide some facts that illustrate the wrongdoing. 

Ms Kilraine argued that she had been dismissed after whistleblowing about bullying and harassment in the workplace. The Court of Appeal found that an email stating “there have been numerous incidents of inappropriate behaviour towards me” did not contain enough specific factual information to be considered as legally protected whistleblowing disclosure. 

When raising concerns, disclosures must contains specific facts, not just an allegation of wrongdoing. For example: “there is a leak of dangerous chemicals into the external drain” is specific, whereas “this organisation is breaching health and safety rules” is not. 

Though you do not need to prove the wrongdoing in order to be protected, you should provide enough information that the person receiving the concern can understand and act on it. 

The protections of whistleblowing law apply to workers who make ‘protected disclosures’, which is the legal term for whistleblowing. If your case goes to tribunal, you will need to convince the judge that you made protected disclosures. 

This case lays out the steps the series of questions that a judge should ask when deciding whether there has been a protected disclosure: 

1. Has there been a disclosure of information? (see Kilraine above) 
2. Did the worker believe that the disclosure was in the public interest? (see Chesterton test) 
3. Was that reasonably held? 
4. Did the worker believe that the disclosure tended to show one or more of the six categories of wrongdoing? 
5. Was that belief reasonably held? 
6. Was the disclosure protected? For this question, different tests apply depending on who the disclosure was made to. See our pages on internal and external disclosures for more information. 

The judge should go through these questions one by one. This can be a helpful guide for planning your arguments, as well as thinking about what kind of evidence you can produce to prove each point. 

‘Reasonably held’ means that you do not have to be right in the end, but you should have good reasons for holding the belief. Try to explain, with evidence, how you came to believe what you did. 

Once you have established that you made protected disclosures, the Tribunal will then turn to the question of causation: were the protected disclosures the reason for the dismissal or detriment? (see below) 

To be protected under whistleblowing law, you must have a reasonable belief in the wrongdoing you are reporting. This does not mean that you have to be correct, as long as you have good reasons to believe that the information you raise tends to show one of the six types of wrongdoing set out in whistleblowing law. 

The case of Babula shows that, if your belief was reasonable, you may still be protected even if it turns out you are wrong. 

Mr Babula was a college lecturer who raised concerns about a predecessor who he believed was breaking the law by inciting religious hatred among the students. However, it turned out that ‘inciting religious hatred’ was not an offence at the time, so no crime had in fact occurred. The Court of Appeal ultimately held that this did not prevent him from being protected. The disclosures could still be legally protected, as Mr Babula had reasonably believed there might be illegal behaviour, even if he turned out to be wrong. 

If you reasonably believe that the disclosure you make tends to show a wrongdoing, whether you are right or wrong does not necessarily affect whether your disclosure is protected legally. What matters is that your belief was reasonable when you raised the concern. 

In whistleblowing claims, the hardest part is often causation: proving the connection between your whistleblowing disclosures and the treatment you experienced. This case explains how a judge will determine whether whistleblowing was the reason behind your detrimental treatment. 

In dismissal cases, the causation test is very high: whistleblowing must be the ‘sole or principal reason’ for the dismissal. In contrast, the test in detriment cases is whether the making of protected disclosures ‘materially influenced’ the employer’s negative treatment of the whistleblower. This means that the fact that you blew the whistle needs to have had some influence on the decision to mistreat you, but does not need to be the main or only reason. 

However, the case also shows that your employer taking reasonable steps to address a dysfunctional workplace will not necessarily be considered whistleblower victimisation. 

In Fecitt, the claimants were three nurses in a walk-in centre who raised concerns about a colleague’s qualifications. This led to a deterioration in relations among staff, with some employees supporting the claimants and others supporting the colleague they blew the whistle about. Management attempted to encourage the employees at the Walk-In Centre to work together, but without success.  Eventually, the employer considered that the only feasible method of resolving the breakdown in the working relationships in the Walk-In Centre was to separate and send some of the staff to work in a different location. The whistleblowers were therefore redeployed. They brought a claim alleging that their redeployment was negative treatment and whistleblowing victimisation.  

The Court of Appeal held that a Tribunal should ask whether the whistleblowing disclosure had a ‘material influence’ on the way the whistleblower was treated. The judge decided that, in this case, the need to deal with a dysfunctional workplace was a proper justification for the decision to redeploy the whistleblowers. The reasons given by NHS Manchester for doing what it did were genuine, and the fact that the Claimants had made protected disclosures had no influence on its decisions. 

The Court of Appeal also found that because there is no provision making it unlawful for employees to victimise whistleblowers, then since the employees who had allegedly victimised the Claimants could not themselves be personally liable under the whistleblowing legislation, NHS Manchester could not be vicariously liable for their conduct. 

Protect (then called Public Concern at Work), called for a Government review of the legislation to ensure that whistleblowers are protected in situations such as those which arose in this case. The law was indeed changed 2013, allowing employers to be held liable for the retaliatory acts of co-workers. 

This case established that a worker can bring a detriment claim against individuals for the decision to dismiss them. This can be particularly helpful where a claim can’t be brought against the employer, for example because they are insolvent. 

Before Osipov, it was understood that employees can bring automatic unfair dismissal claims against their employers, and  both workers and employees can bring detriment (victimisation) claims against individual co-workers and their employer. However, dismissal could not be considered a detriment, and so an employee could not sue an individual directly for their dismissal. 

Mr Osipov was the CEO of an oil and gas company, who was dismissed by the board after raising concerns about the legality of the firm’s operations. He won a claim for automatic unfair dismissal due to whistleblowing, but the company had gone insolvent so could not pay compensation. To get around this, he also sued two directors who he alleged had made the decision to dismiss him. 

The Court of Appeal held that, in addition to an automatic unfair dismissal claim brought against the company, he could also bring a detriment claim against the two individual directors for the decision to dismiss him.  

Therefore, Osipov established that if you are dismissed for whistleblowing, you can bring a claim against the individuals who made the decision to dismiss you. This makes it possible to hold individual managers or co–workers liable for damages you suffer which flow from your dismissal. 

In the Tiplady case the Court of Appeal confirmed that whistleblowing protections only apply to mistreatment suffered in the ‘field of employment’. Therefore, whistleblowing law  does not extend to protect whistleblowers from negative acts that they experience outside of the employment context (i.e. in their private lives) even if they are perpetrated by an employer.  

In this case, Mrs Tiplady brought a claim alleging that she had been victimised by the local council, for whom she worked, following her making a Protected Disclosure. The tribunal found that the detriment she was claiming related to how the council was dealing with her personal property issues. They stated that this related to her as a householder rather than a worker, so was outside the scope of whistleblowing law. 

This was a controversial judgment which in some circumstances, may make it easier for employers to dismiss whistleblowers.  

In Kong, the court found that Ms Kong had raised whistleblowing concerns, and had been unfairly dismissed. However, she still lost her claim for automatic unfair dismissal due to whistleblowing, as it was found that the principal reason for her dismissal was not the fact that she blew the whistle. It was held that the dismissal was because of her behaviour when blowing the whistle and the consequent breakdown of the relationship between her and the Head of Legal.  

To bring a claim of automatic unfair dismissal due to whistleblowing, a whistleblower needs to show that making a Protected Disclosure was the sole or principal reason that they were dismissed. The whistleblower will not win their claim if their employer successfully argues that there was another reason for their dismissal.  This case suggests that an employer can legitimately dismiss a whistleblower if their reason for doing so is the manner in which they made their disclosures, rather than the disclosures themselves. 

To ensure protection under the law, whistleblowers must therefore be very careful not to give the employer any other reason to dismiss. Ensure that concerns are raised in a professional and  conciliatory manner, and try to avoid, unless necessary, direct criticism of a co-worker’s competence.