RAISING CONCERNS EXTERNALLY, THE LEGAL TEST
Where you decide to raise your concerns will have an impact on whether you have whistleblowing protection under the Public Interest Disclosure Act 1998 (PIDA). Where you go with your concerns will determine the legal tests that you need to satisfy to get legal protection. As a blanket rule, the further away from your organisation you go, the harder it is to qualify for protection.
Broadly, there are three places where you can raise your concerns and be protected:
On this page, we will look at the legal test for external disclosures. This means disclosures to anyone who is not your employer or a responsible person. To learn about making an internal disclosure (i.e. a disclosure to your employer or a responsible person), please click on the button to find out more. For more practical advice on disclosures on external disclosures to the regulator or the media, please see our guidance.
Raising your concerns externally
In some instances, you may not feel comfortable in raising your concerns with your employer in the first instance, or you may have already raised your concerns with your employer and you are looking to escalate them. PIDA recognises a range of external channels you can make your disclosure to aside from your employer. External disclosures are generally split into two channels, disclosures to:
It is easier to qualify for protection when you go to a Prescribed Person than it is to go to any other external body or the press. Although this will depend on the concerns that you are raising, i.e. if you are reporting a crime, it is of course reasonable to go to the police.
As well as satisfying that you have made a “qualifying disclosure” (see more here), there are different tests that you need to satisfy to get legal protection depending on to whom you raise your concerns. Expand the boxes 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 or MSP.
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, as long as you are raising a genuine concern, you will likely not lose protection if you were in fact mistaken.
This may be a suitable route for you if you:
(1) have exhausted your employer’s internal whistleblowing procedures, or
(2) if you cannot raise your concerns with your employer in the first instance because the concern is really serious or because you are worried about retaliation for raising your concerns
This option is more likely to be protected than other external methods of disclosure, such as going to 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.
(1) 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.
If you were to raise your concern to the media and you were paid for your story, you may not qualify for protection because you may fail the ‘personal gain’ requirement.
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) you reasonably believe that you will be victimised by your employer if you make a disclosure to them or to a prescribed person; or
(b) where there is no prescribed person, you reasonably believes there is likely to be a cover-up; or
(c) a disclosure of substantially the same information has previously been raised to your employer or to a prescribed person.
(d) the concern is exceptionally serious in nature
Let’s take each in turn…
(a) 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.
(b) 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.
(c) 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.
(d) Exceptionally serious failure
This is set out in section 43H PIDA but follows the above tests except that you must show that the concern raised was exceptionally serious. The key difference from the usual rules on wider disclosure is there is no need for you to raise your concern internally first, or reasonably believe that you will be subject to negative treatment for raising it internally, or that evidence will be destroyed.
A key example is Collins v The National Trust in which the Employment Tribunal held that a worker’s disclosure to the press about asbestos being dumped on a National Trust beach did amount to an exceptionally serious failure.
(3) 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. This includes 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.