Tips on reporting concerns at work | How to blow the whistle

What does "whistle-blower" mean?

If you are an employee who reports misconduct witnessed at work, you may be categorised as a whistle-blower and if so, you will be safeguarded by the whistleblowing regulations outlined in the Employment Rights Act 1996. To receive this protection, the disclosure made must meet certain criteria:

• In the public interest (i.e., it impacts the public)
• Made in good faith (i.e., without malice)
• One that you reasonably believe to be mostly accurate
• Directed towards the appropriate person or organisation

You have the right to raise concerns about past, present, or potential wrongdoing without facing repercussions or being dismissed for whistleblowing. If you experience negative consequences, such as reduced hours, bullying, exclusion from meetings, or unfair treatment, you can seek recourse through an employment tribunal. 

Typically, you have three months less a day from the date of the unfair dismissal or mistreatment to make a claim to an employment tribunal, highlighting the significance of acting promptly.

Who is protected and who is not?

Whistle-blower protection is only available to individuals classified as 'workers', including:

• employees (e.g., office/factory workers, NHS staff, police officers etc)
• agency workers
• apprentices or trainees (e.g., a student nurse)
• self-employed doctors, dentists, ophthalmologists, or pharmacists working in the NHS
• members of a Limited Liability Partnership

If an employer attempts to prevent you from disclosing information by inserting a confidentiality clause in your employment contract or settlement agreement, such clauses would be unenforceable if you are a whistle-blower.

Individuals not typically covered by this protection are:

• those who are truly self-employed
• members of the armed forces
• volunteers without a legally binding employment agreement
• non-executive directors
• lawyers who come across a matter protected by legal confidentiality
• a Crown employee involved in national security matters

The EU Whistleblowing Directive broadened the protection for whistle-blowers to include self-employed contractors, volunteers, non-executive directors, and job applicants. Additionally, it covers 'facilitators' who support whistle-blowers in the process, such as family members and colleagues.

Since Brexit, the UK has not been required to enforce this new law and has yet to do so. This means that if you belong to an unprotected category and make a disclosure, you might be at risk of being dismissed from your position. The lack of this safeguard has prompted advocacy campaigns from organisations like Protect, urging for the law to be enhanced to safeguard these specific groups.

Individuals in this vulnerable group may express their concerns through their organisation's safeguarding or grievance process, even if they do not have access to the same legal safeguards.

However, numerous employers have a policy that permits you to report an issue to them even if you are not classified as a protected whistle-blower, as many employers are sincerely interested in addressing and resolving any concerns. In such instances, it is advisable to follow the disclosure procedures specified in the firm or company's policy.

What can you report?

As a 'worker', legal protection is in place when reporting 'qualifying' concerns, including:

• criminal offences like fraud
• endangerment of people's health and safety
• environmental risks or damage
• miscarriages of justice
• instances of concealing misconduct

Reporting personal grievances like discrimination, bullying, or harassment may not be protected by whistleblowing laws unless the disclosure is also deemed to be in the public interest.

You would not be protected if you gained access to the revealed information through unlawful methods, like hacking.

Who can you talk to?

Under the Act you can make a whistleblowing disclosure to any of the following: 

• your employer
• a legal adviser
• a government minister (if employed by a statutory body)
• the party accountable for the misconduct (for example, a contractor firm you have collaborated with)
• a 'prescribed person or body' (like a regulator, commissioner, or governmental entity)

In instances of 'extremely serious failure', you have the option to reveal the information to another individual or organisation, like the media or police, if there is a valid justification. 

If you intend to 'blow the whistle', think carefully about who you should confide in. It is best practice to consider the above list in order. Whilst you can make a disclosure to an individual further down the list, bear in mind that you might have to give reasons as to why if the matter reaches the employment tribunal. You are however able to speak to a legal adviser at any time without having to provide a rationale. 

How to ‘blow the whistle’

When disclosing information to your employer, it is advisable to adhere to the organisation's whistleblowing procedure, if available. While verbal disclosures are acceptable, it is recommended to document your concerns in writing as well. This documentation serves as tangible proof of your disclosure. Your report should provide background information and reasons for your concerns, along with relevant dates and details of individuals you have informed. Additionally, you may include any pertinent communications, documents, photographs, or recordings. However, refrain from sharing information outside your organisation if it violates your contract or any laws.

How can Hegarty help?

If you are worried about misconduct in the workplace and are considering making a whistleblowing disclosure, reach out to our team of experts for guidance. They will assess the situation, assist you in determining if a disclosure is necessary, advise on whom to disclose to, and help you communicate your concerns clearly and appropriately.