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

Check whether you have legal expenses insurance – sometimes this comes with your house, other insurance or may be included with trade union membership. Whistleblowing can carry risks, so it is worth considering if you could afford legal advice if you lose your job or suffer victimisation – if not, consider taking out insurance before you raise a concern.
Check whether your employer has a whistleblowing policy which states to whom disclosures should be made and what procedure to follow. Whistleblowing policies are not legally binding, but you should follow them as far as is possible.

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Check that you propose to raise a concern that affects others, rather than something that only affects you personally. See here for the differences between grievances and whistleblowing matters.
Consider if you are implicated in the wrongdoing. Whistleblowing does not shield you from disciplinary action if you have also done wrong, and you may need to seek legal advice.
Consider whether you want to raise your concern openly, confidentially or anonymously.
Consider what outcome you want – remember, whistleblowers are generally witnesses and not complainants, so the usual outcome would be that you want your concern investigated. You should not conduct your own investigation.
Be aware, due to your employer’s confidentiality obligations to its employees, you may not be provided with the full outcome of an investigation, if disciplinary action is taken.
Remember that you may be mistaken about your concern or there may be an innocent or good explanation for the concern you have.
Assess your risk of being victimised at work:

1. Will it be immediately clear (either from the content of the disclosure, the size of your organisation or from a previous history of speaking up) that it was you who made the disclosure(s)?

2. How have people who have spoken up in the past been treated?

3.If you are planning to leave employment, could you wait until after you have left to raise your concerns?
Your colleagues (and maybe even your family) may not understand why you spoke out. Consider what support you have around you and how you will look after yourself – whistleblowing can be stressful.
If colleagues are also concerned, consider whether collective concern raising is an option.
Communicate the concern in an objective, professional and factual manner, refraining as much as possible from criticising particular individuals or using inflammatory or threatening language. This is to prevent you from being criticised for the way you raised your concerns and make you more likely to be legally protected.
You can still be a whistleblower if you raise a concern orally, you do not necessarily have to do so in writing. But if you raise your concern orally, it is usually a good idea to send something in writing afterwards to evidence this.
Keep a note of what you raise, how you raised it, when and with whom.
Create a private diary to record what happens once you have raised your concern(s) and any reaction you receive. Date each entry so there is a clear record.
Being a whistleblower doesn’t mean you can ignore your duties and obligations as an employee. For instance, when raising your concerns, we do not recommend you take away or download any confidential or private information, as this may breach your obligations to your employer or others.
If your concerns are ignored or not investigated, or you feel that the investigation outcome is unfair and/or unreasonable, it may be necessary to escalate your concerns beyond your employer. You should seek advice from Protect before doing so as it is important to consider who you raise concerns with, and how this might impact on you legally and practically.

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:

Miscarriage of justice
Damage to the environment
Danger to health and safety of anybody
Breach of a legal obligation – identify the obligation
A criminal offence – identify the offence
Cover up of any of the above categories of wrongdoing

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):

you reasonably believe that the subject matter of the disclosure falls within the scope of that prescribed person (see a list here)
you reasonably believe the information, and any allegation contained in it, is substantially true.

7. If you intend to raise your concern(s) to someone other than your employer or a prescribed person (a wider disclosure), you are likely to remain protected by whistleblowing law if:

you reasonably believe that the information disclosed, and any allegation contained within it, are substantially true;
you are not making the disclosure for personal gain (this usually means not being paid to make the disclosure e.g. to the media);
any of the following three conditions are met:

you reasonably believe you will be subjected to victimisation by your employer if you make a disclosure to them or a prescribed person
where there is no relevant prescribed person, you reasonably believe it is likely that evidence relating to the relevant failure will be concealed or destroyed if you make a disclosure to your employer; or
you have previously made a disclosure of substantially the same information to your employer or prescribed person;

in all the circumstances, it is reasonable to make the disclosure, considering in particular:

if you previously disclosed to your employer, whether in the making of the disclosure you complied with any procedure whose use by you was authorised by your employer
if you have previously raised your concern with your employer or a prescribed person, any action they have taken or might reasonably be expected to have taken; and
whether the disclosure is made in breach of a duty of confidentiality owed by your employer to any other person
whether the relevant failure is continuing or is likely to occur in the future
the seriousness of the relevant failure
the identity of the person to whom you will make the disclosure

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:

you must reasonably believe that the information you intend to disclose, and any allegation contained within, are substantially true;
you must not be making the disclosure for personal gain (this usually means you are not being paid to make the disclosure e.g. to the media)
the relevant failure must be of an exceptionally serious nature; and
in the circumstances, it must be reasonable for you to make the disclosure, with particular regard to the identity of the person to whom you intend to disclose the information to.

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.