Practical and Legal Checklists for Whistleblowers
We know that blowing the whistle at work can be difficult. To help you manage the process we have put together a list of practical tips and legal factors you should consider before speaking up. At Protect, we provide free, confidential legal advice and can talk you through these factors. Getting early advice can make all the difference. Find out how to get in touch with us here.
It is unlawful to treat a whistleblower badly or to dismiss them for raising whistleblowing concerns. However, you should be aware that whistleblowing law is complex, and should you need to bring a claim, you may find the employment tribunal process difficult and expensive. Your employer is likely to have more resources than you and be able to afford legal representation. Many whistleblowers say they never imagined the scale of the victimisation they would face – and you can never be certain that the law will protect you. Make sure you have considered the risks thoroughly and are prepared to take them.
Remember that if you start a claim whilst still employed, this may lead to further deterioration in your working relationships. However, in some cases, starting a claim will mean your employer takes your status as a whistleblower seriously which may help lead them to settle with you. It is possible, and sometimes advisable, to blow the whistle after you have gained new employment elsewhere, but this will depend on each individual case and the seriousness of the concern.
Practical Tips Checklist
Legal Checklist – how to be protected under PIDA
1. Check that you are an employee or worker under PIDA as not everyone in the workplace is protected.
2. Check you are going to disclose specific information with factual content, not suspicions or unfounded allegations and, where possible, stick to what you have seen first-hand. For example, stating your employer is taking a particular action which you believe it is harming the environment is more likely to be a protected disclosure than simply stating ‘you are damaging the environment’.
3. Check you reasonably believe that the information which you propose to disclose tends to show that one of the following categories of wrongdoing, risk or malpractice has taken place, is taking place or is likely to take place:
4. Check you reasonably believe making the disclosure is in the public interest. This usually means you are a witness to the wrongdoing rather than the issue centring on your own personal employment matters (e.g. you alone being affected) for which a grievance is likely more appropriate.
5. While your motivation isn’t important in determining if your whistleblowing is protected, if you are not acting in good faith this could affect how much compensation you win should you be successful in a whistleblowing tribunal claim.
6. In most cases, it will be safest and most effective to initially raise your concern(s) with your employer – this usually means your line manager, a senior manager or a member of the Board, but you can make a disclosure to a prescribed person and still likely remain protected by whistleblowing law, if (as well as 1-4 above):
7. If you intend to raise your concern(s) to someone other than your employer or a prescribed person (an wider disclosure), you are likely to remain protected by whistleblowing law if:
8. Alternatively, if you intend to disclose information of an exceptionally serious nature as a wider disclosure, then you need to fulfil the following criteria:
9. Note that clauses within Non-Disclosure Agreements, contracts or settlement agreements that seek to stop legitimate whistleblowing are void (as long as the disclosure is a ‘protected disclosure’).
10. Remember there is a three months minus 1 day time limit to bring both detriment and automatic unfair dismissal employment tribunal claims.