A quick guide to whistleblowing
Whistleblowing is protected in the Employment Rights Act 1996 (“ERA 1996”).
What is whistleblowing?
A worker has the right not to be subjected to a detriment by any act, or any deliberate failure to act, by his employer done on the ground that the worker has made a protected disclosure (Section 47B ERA 1996)
Who is protected?
Workers, this includes but not limited to, employees, contractors, casual workers and agency workers. Unless of course, the person making the disclosure is the person who committed the offence then they are not protected (section 43B(3) of the ERA 1996).
What is a protected Disclosure?
A protected disclosure is a qualifying disclosure as defined in Section 43B of the ERA 1996.
A qualifying disclosure means a disclosure of information which in the reasonable belief of the worker when making the disclosure is made in the public interest and tends to show one or more of the following:
- a criminal offence has been committed;
- a person has failed or likely to fail with a legal obligation that he is subject to;
- a miscarriage of justice has occurred or likely to occur;
- health and safety is likely to be endangered;
- environment is or likely to be damaged; or
- that information tending to show any matter falling within the above is likely to be deliberately concealed.
What is a reasonable belief?
The tribunal will consider whether the worker genuinely believed that the disclosure related to a relevant failing (the subjective element) and whether it was reasonable for the worker to hold that belief (the objective element).
Who should be disclosure be made to?
A qualifying disclosure is made if the disclosure is made to the employer or a relevant person other than the employer (section 43(c) of the ERA 1996, see also sections 43D to 43F ERA 1996)
Causation
In order for the protections to apply, there has to be a protected disclosure and detriment or dismissal. There must be a causal link between the disclosure and the detriment or dismissal.
Burden of proof
The burden of proof is on the worker to establish the making of the disclosure and the dismissal or detriment. It is then for the employer to establish the reason for dismissal or grounds for detriment.
