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Case update – protecting the potential whistleblower

An interesting recent case at the Employment Tribunal (Bilsbrough v Berry Marketing Ltd) looked at victimising of a potential whistleblower.

In this case, Mr Bilsbrough, a client service executive, had been researching how to blow the whistle to the Information Commissioner, and was suspended. A strict interpretation of the law might suggest he was not yet a whistleblower as he hadn’t yet blown the whistle (made a disclosure) and therefore he was not protected. However, the tribunal found that Mr Bilsbrough was suspended for considering how to blow the whistle and this was not justified. The Tribunal held that researching how to whistleblow was an integral part of making a disclosure, and Mr Bilsbrough had suffered unlawful detriment because the employer believed that he had considered making a protected disclosure.

Although this case doesn’t create a precedent, it shows the Tribunal’s willingness to consider wider issues, including human rights to freedom of expression. The Tribunal noted that if a person cannot consider making a disclosure without the risk of sanction, even if they then decide not to make a disclosure, that would have a “chilling effect”. They held that whistleblowing law should be read so as to be compatible with human rights.

The judgment said: ‘In a case such as this, if an employee does not know how to make a disclosure to a regulator, he or she will have no option but to research how to do so.’ It added: ‘If an employee is behaving responsibly in preparing to make a disclosure…then the dismissal of such a person or subjecting them to a detriment because of that research would be an interference with that employee’s right to freedom of expression.’

Protect would like to see the protections for whistleblowers broadened to include potential whistleblowers, as in this case, as well as perceived whistleblowers (those who are wrongly assumed to have blown the whistle).  We’re calling for a wider review of the Public Interest Disclosure Act, (PIDA) to reflect the changes in the workplace in the last 20 years since its introduction, and to make sure the widest possible group of individuals are protected when they try to speak up to stop harm.

Read the case in full