Workplace Whistleblowing Protection

The Public Interest Disclosure Act 1998 – often referred to as the ‘Whistleblowing’ Act – gives workers legal protection when disclosing information relating to crimes, breaches of legal obligations, miscarriages of justice, dangers to health and safety or the environment and to the concealing of evidence relating to any of these.

Where a worker is victimised or suffers detrimental treatment at the hands of their employer for blowing the whistle in the public interest, they are entitled to receive full protection under the law. The point was proved by a case in which occupational health specialists who claimed to have been penalised for pointing out serious flaws in systems designed to protect fire service personnel won a fresh chance to win substantial compensation (Patel v Surrey County Council).

The two specialists were part of an occupational health team that provided support to fire crews, including health surveillance and fitness testing. They alerted their local authority employer to alleged poor clinical governance and breaches of statutory obligations. They also claimed to have been bullied, harassed and victimised by a long-serving manager in response to having made protected disclosures.

After both went on stress-related sick leave, one of the specialists was dismissed and the other resigned. Following a 14-day hearing before an Employment Tribunal (ET) – at which a large number of witnesses gave evidence and more than 2,200 documents were produced – their claims of unfair dismissal and whistleblowing detriment were rejected.

However, in upholding their challenge to that ruling, the Employment Appeal Tribunal (EAT) identified errors of law in the ET’s reasoning. It had failed to apply the correct approach to the issue of whether the protected disclosures materially influenced the alleged detrimental treatment. It had also erred in adopting a ‘rolled up’ approach to the numerous disclosures, rather than making findings of fact in relation to each of them.

In the circumstances, the EAT directed a complete rehearing of both cases by a differently constituted ET.

The law is designed to ensure that whistleblowers feel able to make a disclosure to their organisation without suffering a detriment. It is intended to drive behavioural change within organisations so that disclosures are viewed as an effective way of identifying and overcoming poor practice. Appropriate policies and procedures for handling whistleblowing will help encourage this.