The Public Interest Disclosure Act 1998 (PIDA) makes it unlawful to subject a worker to negative treatment or to dismiss them because they have raised a whistleblowing concern. Raising a whistleblowing concern is also known as a making a ‘protected disclosure’ in law.
Under PIDA you can make disclosures both internally and externally, with corresponding legal tests depending on who you make your disclosure to. As a general rule, the further out of your employer that you go (in making the disclosure) the more stringent these legal tests become.
External Channels of Disclosure
S.43B of PIDA establishes the types of disclosures qualifying for protection. Once the substance of your disclosure is established, the second step is to look at who the disclosure was made to, to determine whether or not it is protected.
In some instances, a whistleblower may not feel comfortable in raising their concerns with their employer in the first instance, or may have exhausted the internal whistleblowing channels. PIDA recognises a range of external channels you can make your disclosure to aside from your employer, e.g. a prescribed person (regulator), unprescribed bodies, a legal adviser, and even the press.
Expand the sections below to find out more.
What does this mean?
This allows you to seek legal advice about a concern and to be fully protected in doing so. In practice, however, this is less commonly relied on due to professional legal privilege. This means that for the purpose of seeking legal advice, any communication between yourself and your lawyer is confidential and not something that your employer would ordinarily have knowledge of.
What does this mean?
This is relevant if you are employed by an individual or a body appointed by a Minister of the Crown or a member of the Scottish Executive under statutory powers. This could include a government agency or QUANGO, a utility regulator, an NHS Trust, a statutory tribunal or a non-departmental body. In this case, a disclosure made to a government minister or a member of the Scottish Executive will be a protected disclosure.
What does this mean?
The list of prescribed people and bodies are relevant regulators that Parliament have deemed responsible for certain sectors and industries that you can report your concerns to, e.g., the Care Quality Commission for issues around patient safety in care homes. A list of the prescribed persons for England, Scotland and Wales and for Northern Ireland is available. In addition to this list, you can also blow the whistle to your MP.
Where a regulator has been prescribed, you must satisfy two conditions in order for a disclosure (to them) to be protected:
(1) you must reasonably believe that the subject matter of the disclosure falls within the remit of that regulator; and
(2) you must reasonably believe that the information disclosed, and any allegation contained in it, are substantially true.
This is a higher threshold, and may be harder to satisfy if you are relying on second-hand information that you yourself have not witnessed or have failed to seek further information on before raising it with the regulator. However, provided that such belief is reasonably held (you have a genuine concern), you will not lose protection if you were in fact mistaken.
This is the most common route for whistleblowers if they have exhausted their employer’s internal whistleblowing procedures, or if they cannot raise their concerns with their employer in the first instance due to the seriousness of the concern or due to a heightened risk of retaliation. This option is more likely to be protected than other external methods of disclosure, such as the media.
What does this mean?
Disclosures in other cases, also known as making a ‘wider disclosure’, cover those types of disclosures which do not fall within the categories mentioned above. This can include for instance a professional body, a non-prescribed regulator, a union official, the relatives of a patient at risk, a contracting party whose rights were being flouted, shareholders or the media. In summary, in making such a disclosure you must satisfy a stricter legal test to be protected, as set out below.
a) Truthfulness of the information and motive
The first of these tests relates to the truthfulness of the information you are raising. This means that you must have a reasonable belief that the disclosure you are making is substantially true. Secondly, this also means that you must not be making the disclosure for ‘personal gain,’ which can include money or any other benefits in kind in return for making that disclosure.
The second lays down three preconditions, one of which must be satisfied if the wider disclosure is to be protected. The presumption is that before any wider disclosure is made, the concern will have been raised with your employer or with a prescribed regulator. These three preconditions reflect those instances where this may not have been possible.
These are that (a) the worker reasonably believes he will be victimised by his employer, if he makes a disclosure to them or a prescribed person; or (2) where there is no prescribed person, he reasonably believes there is likely to be a cover-up; or (c) a disclosure of substantially the same information had previously been raised to his employer or to a prescribed person.
(1) Fear of victimisation
If you reasonably believe that you will be victimised by your employer or a prescribed person in making a disclosure to them, then you may satisfy this criteria. You would be more likely to satisfy this precondition if you can show, by reference to a previous incident, that your employer had punished another whistleblower for reporting their concerns, or if you have reasonable grounds for believing that as a result of an unacceptably close relationship between a prescribed regulator and your employer, you will be victimised for making a disclosure to that regulator.
(2) Fear that evidence will be concealed or destroyed
This is where there may be no prescribed regulator for your relevant sector or concern, and because of this, you have a reasonable belief that a cover-up of the wrongdoing is likely to occur if you report your concern to your employer.
(3) Matter previously raised with the employer or a prescribed person
This means that wider disclosures may be protected in circumstances where the matter has previously been raised internally or with a prescribed regulator. The disclosure does not have to be of exactly the same information, provided it is substantially the same.
(c) Reasonableness of the disclosure s43G(3)
In making a wider disclosure, you must also show that it was reasonable for you to do so in all the circumstances. This is because the range of people to whom such a disclosure might reasonably be made is potentially vast. This is a relevant consideration because, for example, reporting a concern to a professional body may be regarded as a reasonable course of action, whereas going to the media may not be, especially in the first instance.
There are certain factors that can be considered in determining whether or not the disclosure was reasonable, for instance, who you make the disclosure to, the seriousness of the wrongdoing and whether the wrongdoing is continuing or anticipated.
When to seek advice?
Protect’s Advice Line can help you navigate this. If you are in need of advice, please contact us below.