GOING TO THE REGULATOR OR THE MEDIA
Making an External Disclosure
Raising whistleblowing concerns to someone outside of your employer (or ‘making an external disclosure’) can be a difficult decision. There are many factors you will want to consider before taking this step – for example, whether internal escalation is possible, whether the information is sensitive, whether there is a risk of victimisation. These considerations can be particularly complex if you are still working at the employer so calls us for advice if you are unsure.
For more detail on the legal test, do check our guidance.
If you are sure about raising concerns externally, the first question you have might have will be – where do I go?
What is the difference between all of the outside ‘external’ bodies?
The list of Prescribed People and Bodies is the best starting point to identify a regulator to disclose your concerns to. Prescribed People are regulators that the government has designated as responsible for hearing and dealing with whistleblowing concerns in their respective sectors.
It is easier to gain protection under whistleblowing laws if you raise your concerns to a Prescribed Person than other external bodies.
However, you must be careful to identify the correct regulator because your disclosure will only be protected if you raise a concern that is within that regulator’s remit. For example, if you have a concern about patient safety in England you can raise concerns to the Care Quality Commission, but not to Her Majesty’s Revenue and Customs.
It can sometimes be difficult to identify the correct Prescribed Person, particularly where it looks like more than one regulator might have an interest. We can help you to make the right decision so please call us for advice.
Some sectors have their own regulators who have the power to investigate, prosecute, and publish reports – for example the Financial Conduct Authority regulates the financial services sector. Other regulators work across all sectors – for example, the Information Commissioner’s Office regulates data protection law in all industries.
Members of Parliament are all Prescribed Persons so raising your concerns to your local MP can sometimes be effective. Although they will be unlikely to resolve the concerns themselves, they can help to campaign and expose wrongdoing.
Sometimes, you may need to raise the concern to a body that is not a Prescribed Person – such as the Police. There will be certain concerns that clearly need to be reported to the Police but these disclosures can be more difficult to make for practical and legal reasons. If you are unsure – please contact us.
We are sometimes asked about making disclosures to the media. Only in very rare and exceptional circumstances will this be the most appropriate and effective way to resolve your concerns. Please call us for advice if you are considering speaking to the media – we will help you to explore whether this is truly the best option.
All of these options may carry legal protection against victimisation, but the legal tests are different depending on where you raise the concern. For more information, see here. Please call us for advice if you are unsure – particularly if you are considering making a disclosure to a non-Prescribed Person.
Can I make an External Disclosure if I am still working for the employer?
The short answer is – yes.
You can raise concerns to a regulator at any stage and you do not have to first raise the concern to your employer. However, this is not always an effective thing to do – it is often better to take things step by step and not to ‘leapfrog’ to an outside body.
As such, consider raising the concern internally first as your employer is best placed to deal with the issue quickly and is in a better position to shield you from retaliation.
If you make an external disclosure whilst still working for the employer, you will need to think carefully about the risks this has for you. A regulator may take longer to resolve the issue and you may not be as involved in the process or consulted about the outcome. A regulator also has less power to protect you from victimisation.
Please call us for advice if you are thinking about making an external disclosure and you still work at the organisation – particularly in the following circumstances:
What if I am no longer working for the employer?
In these circumstances, it may be easier to raise your concerns externally because the risk of victimisation is much lower. There is little an employer can do to you once you have left the organisation.
However, a previous employer could still victimise you for blowing the whistle – we call this ‘post-employment detriment’ and the most common example is a poor reference.
If you are worried about this or think that it may have happened to you, please contact us for advice.
You can contact us for advice if you want to make an external disclosure and you have left the employer – particularly in the following circumstances:
If you have a legal adviser or trade union representative, make sure they are aware of your plans to escalate the whistleblowing.
Blake (not his real name) worked as an engineer for a food producer. He was concerned that products were not being properly cleaned during production and goods were being exposed to contaminated water and excess chemicals…
When to contact us for advice:
We're here for you
We are here to support whistleblowers so please contact us on 0203117 2520 or send us an email if you are unsure about what to do at any stage of the process. You may find helpful our list of Dos and Don’ts: