WHAT TYPE OF CONCERNS CAN I RAISE TO BE PROTECTED?
To qualify for protection under whistleblowing law (the Public Interest Disclosure Act 1998) you must:
- Be an employee or worker. See “Who is Protected by Whistleblowing Law?”
- Make a disclosure of information
- Reasonably believe the concern to be in the public interest. See “Public Interest“.
- Reasonably believe the concern tends to show a category of wrongdoing set out in the law
This is called making a “qualifying disclosure” and is set out in section 43B of the Employment Rights Act 1996.
To be protected under the law you also need to disclose to the right person in the right way. Find out more about How to Raise a Whistleblowing Concern in accordance with the law.
On this page, we are going to focus on points (2) and (4): what is a disclosure of information, and what are the categories of wrongdoing and what do they mean?
What is a "disclosure of information"?
How to disclose information?
A disclosure of information will amount to a “disclosure” whether it is made in writing or verbally, formally or informally.
Tactically, when you are making a disclosure, you should try to do so in writing. Whilst you may still be protected if you make a verbal disclosure, it can be more difficult to prove and may lead to a dispute as to what was actually said.
Any form of recorded information is likely to be a ‘disclosure’, such as handing over a video recording (Aspinall v MSI Ford Ltd EAT/891/01). However, we advise against covertly recording conversation as this may result in disciplinary action.
It is also possible for several communications taken together to amount to a disclosure of information, even if each individual communication is not a disclosure on its own. (Norbrook Laboratories (GB) Ltd v Shaw UKEAT/0150/13) If you wanted to use this argument, you should be able to clearly identify the disclosure of information in the communication (it should not be “buried” in lots of other information).
See our Template Letters for guidance on what information you should include when raising your concern.
How much detail should I disclose?
The disclosure must contain sufficient factual detail and be sufficiently specific (Kilraine v London Borough of Wandsworth [2018] EWCA Civ 1436) See below “Information vs Allegation”.
A disclosure can contain new information, or you can also bring attention to information of which the person is already aware. (section 43L(3) ERA 1996)
Letters from solicitors or grievance letters may amount to a disclosure of information as long as they “convey facts” of a type of wrongdoing set out in the law.
Obtaining evidence is not the same as making a disclosure. (Bolton School v Evans [2006] EWCA (Civ) 1653). You should be careful if you are collecting evidence that you don’t commit misconduct in doing so. It is important to remember that you do not need to provide evidence when you raise your concerns.
Taking preparatory steps to make a disclosure
Researching how to make a protected disclosure about a wrongdoing may amount to a disclosure (Bilsborough v Berry Marketing Services Ltd ET/1401692/2018).
In this case, the worker researched how to disclose breaches of data protection law to the Information Commissioner’s Office. The employer believed that the worker considered making a protected disclosure and victimised him as a result. Ordinarily, the worker is required to have made a protected disclosure to be protected, but here the Tribunal said that where the worker has taken preparatory steps to or “considered” making a disclosure, they should be protected to give effect to Right to Freedom of Expression in the European Convention on Human Rights.
It is still unclear what is required for a worker to show that they “considered” making a disclosure. This is also a first instance decision and therefore not binding on other tribunals to follow, but it may provide helpful arguments if you find yourself in a similar position.
Information vs Allegation
Disclosing “information” is where you communicate facts as opposed to simply voicing a concern or making an allegation. (Cavendish Munro Professional Risks Management Ltd v Geduld UKEAT/0195/09)
In Geduld, the Employment Appeal Tribunal (EAT) gave a helpful example to illustrate this. In the hypothetical example of a worker raising concerns about health and safety in a hospital, a disclosure of “information” would be “The wards have not been cleaned for the past two weeks. Yesterday, sharps were left lying around”. However, “you are not complying with Health and Safety requirements” would instead be an allegation and not information and therefore would not be a disclosure. (Paragraph 24)
This decision in Geduld was expanded upon and corrected in Kilraine v London Borough of Wandsworth [2018] EWCA Civ 1436 where the Court of Appeal said there was not such a strict difference between “information” and “allegation”. For a statement to be a “disclosure of information”, it must have sufficient factual content and be sufficiently specific. This is also considered in light of the context or situation in which the disclosure was made. For example, using the above example, if the worker took their manager to the hospital ward, pointed to sharps lying around and said “you are not complying with Health and Safety requirements” this would likely be a disclosure of information as the allegation is backed up with specific information.
This was confirmed in Simpson v Cantor Fitzgerald Europe [2020] EWCA Civ 1601. When you make a disclosure, you should make sure to give some specific information to back up your claims.
What types of wrongdoing can you raise?
For your disclosure to qualify for protection, the information that you provide must fall within one or more of the six categories of malpractice or failure that the law sets out. See the list below to find out more about what each category means.
A criminal offence is self-explanatory and includes any wrongdoing that you reasonably believe breaks the law.
Examples: “Manager convicted for theft in care home” and “Furloughed restaurant employee had concerns over illegal working ignored”
The wrongdoing must be tied to a legal obligation. This means that wrongdoing that you think is morally wrong, professionally wrong or a breach of company policies may not be sufficient if it is not also a legal breach.
A breach of a legal obligations includes breaches of any statutory requirement; contractual obligations; common law obligations (e.g. negligence, nuisance, defamation); or an administrative law requirement.
Examples: “Breach of FCA Regulations: Finance worker speaks up over fake charges to clients“, “Social worker speaks up about inappropriate relationship” (as well as being a health and safety concern, this could be seen as breach of professional duty, breach of duty of care etc) and see Ibrahim v HCA International Ltd [2019] in which a whistleblower raised concerns about a breach of confidentiality.
Miscarriage of justice includes matters likely to lead to a wrongful conviction, such as reliance on unsound forensic techniques, failure to disclose evidence to the defence, or perjury (though this would come both under this heading and that covering criminal offences).
Example: See Gilham v Ministry of Justice [2019]
This encompasses risks to any individual – i.e. whether they are a worker of the employer or not. As such, this provision includes risks to patients in a hospital, passengers on a train, children in care, consumers of electrical products or customers in a restaurant. It should be noted that the pre-existing protections in the ERA (ss.44 and 100 ERA) against victimisation for raising health and safety concerns remain in force.
Examples: “Whistleblower exposed to asbestos speaks up to regulator”, “Food supplier fails to test food hygiene” and “Mental health worker speaks out over poor patient care”
This includes any wrongdoing that endangers or damages the environment. For example, dumping toxic chemicals in the sea.
Example: Collins v The National Trust ET/2507255/05 where the whistleblower raised concerns about asbestos being dumped on a local beach.
Cover-ups include information that tends to show the deliberate concealment of information about any of the above wrongdoings.