The age of Whistleblowing employees

There have been widespread reports recently of whistleblowing in the NHS and an award of £1.2m was made in a whistleblowing case against an NHS trust in Cornwall, to a whistleblower who was sacked for disclosing poor practice. The Public Interest Disclosure Act 1998 provides protection for workers reporting malpractice by their employers or third parties. The Act creates two levels of protection for whistleblowers:

The dismissal of an employee will be automatically unfair if the reason, or principal reason, for their dismissal is that they have made a ‘protected disclosure’.
Workers should not be subjected to any detriment ‘on the ground’ that they have made a protected disclosure. Any disclosure needs to be both ‘qualifying’ and ‘protected’. Merely gathering evidence or threatening to make a disclosure is not sufficient. The disclosure must be made on one of the following grounds, which shows one or more of the following has happened, or is likely to happen:

• A criminal offence
• A breach of legal obligation
• A miscarriage of justice
• A danger to the health and safety of any individual
• A danger to the environment
• Deliberately concealing any of the above

There must also be a reasonable belief that the information will show one of these failures and that the disclosure is in the public interest.

For an employer to have an effective whistleblowing regime, it needs to foster a culture where staff feel safe to make disclosures. There must be a defined procedure for reporting and relevant training should be provided on both how to handle and make disclosures. The whistleblower needs to be safeguarded and supported, and staff should be made aware that any victimisation will lead to disciplinary action.

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