The law protects individuals who make a wider disclosure (ie beyond the employer or relevant regulator) from detriment or dismissal if they meet certain other legal tests (set out in Section 43G ERA). Usually you will be expected to have raised a concern with the employer or prescribed regulator before you make a wider disclosure, but there are limited circumstances when you can make a wider disclosure without taking the matter elsewhere first.
Seek advice before you make a wider disclosure, and especially if you plan to go to the press.
Making a wider disclosure can include raising concerns with:
- your colleagues
- your trade union (other than a union solicitor)
- another employer
- a regulator that is not a prescribed person for your concern
- a professional body
- the media.
There are some exceptions and you should seek advice if you are not sure who to raise your concern with.
If you make a wider disclosure (eg to the press) you need to meet the tests that you reasonably believe that the information disclosed is in the public interest and tends to show one or more of the six categories of wrongdoing and is substantially true AND
you do not make the disclosure for personal gain AND
it is reasonable in all the circumstances for you to make the disclosure AND
one of the following applies:
- you reasonably believe you will be subjected to a detriment by your employer if you disclose to them
- there is no prescribed regulator and you reasonably believe that evidence will be destroyed if you disclose to your employer
- you have previously made a similar disclosure to your employer or a prescribed person
- the relevant wrongdoing is exceptionally serious.
You may be protected from detriment or dismissal if you haven't already raised a matter internally or with a prescribed person if
- you reasonably believe you will be victimised by your employer if you make a disclosure to them or to a prescribed person (Section 43G (2)(a) ERA); or
- where there is no prescribed person and you reasonably believe there is likely to be a cover up and evidence will be concealed or destroyed (Section 43G(2)(b) ERA); or
- the disclosure is of exceptionally serious wrongdoing (Section 43H ERA).
The law says you will not be protected if you make a wider disclosure for "personal gain" (Section 43G(1)(c) ERA). This is to stop people giving information about wrongdoing direct to the media in return for large sums of money. Personal gain covers both money and benefits in kind and you may not be protected even if you don't personally receive a payment, but a member of your family does.
Only a tribunal can decide if it is reasonable for you to have made a wider disclosure. The law sets out a number of factors to be taken into account by a tribunal (Section 43G (3) ERA):
- the identity of the person to whom the disclosure is made (for example, it may be reasonable to tell a non-prescribed professional body about wrongdoing, but not as reasonable to go to the press)
- the seriousness of the relevant failure (the more serious the concern, the more reasonable it may be to make a wider disclosure)
- whether the failure is continuing or likely to occur in the future (it may be more reasonable to make a wider disclosure about ongoing wrongdoing, rather than a concern from the distant past)
- whether the disclosure is made in breach of a duty of confidentiality owed by the employer to another person
- any action which the employer or prescribed person has taken or might reasonably be expected to have taken as a result of a disclosure to them (if your employer does nothing when you raise a concern, it may be more reasonable to consider raising it elsewhere)
- whether you complied with your employer's procedure in making a disclosure.
Whether the wrongdoing is exceptionally serious is decided on a case by case basis, and there is no guidance in the legislation about this. If in doubt, seek advice.