What Qualifies as a Protected Disclosure?

But what qualifies as a protected disclosure and how can you tell whether the correct procedure has been followed? Read on to find out more.

What is a Protected Disclosure?

A protective disclosure is a qualified disclosure made by an employee when they believe their employer has committed wrongdoing. As long as the disclosure satisfies all requirements laid out in the Employment Rights Act (ERA) 1996, the worker will be protected from from any form of unfair treatment. 

The act of making a protected disclosure is more commonly known as whistleblowing, and there are several types of complaints that can be safeguarded. Broadly speaking, they involve situations where an individual believes that:

• A criminal offence has taken place
• There has been a breach of a legal obligation
• There has been a breach of health and safety legislation

Protected disclosures can cover an event that is happening now, has occurred in the past, or is likely to take place in the future. 

Who Can Make a Protected Disclosure?

Whistleblowing provisions are designed to protect any worker who makes a qualified disclosure. Under the ERA, the term “worker” covers a broader spectrum than some businesses may realise, offering protection for many types of potential whistleblowers.

An individual is classified as a worker if they currently work, or have worked, under a contract in the UK. This includes:

• Employees
• Casual workers
• Home workers
• Agency staff
• Temporary employees
• Apprentices
• Individuals on work experience
• Training providers
• People working via personal service companies

Protected disclosure status doesn’t usually apply to the self-employed (unless they are within the NHS) or Crown servants involved in matters of national security.  

What Qualifies as a Protected Disclosure?

For a whistleblowing claim to qualify as a protected disclosure, it must satisfy a number of different criteria. These include whether it’s a qualified disclosure, is in the public interest, or if the issue has been raised in the correct manner. A specialist whistleblowing solicitor can help you identify if a case can be classed as protected. 

The different elements that a qualified disclosure must satisfy include: 

– Is it a Qualified Disclosure?

To be protected, a whistleblowing claim has to come under the definition of a qualified disclosure. To be recognised as a qualified disclosure, the worker must have a genuine belief that the business is involved in one (or more) of six “relevant failures”. These are:

1. Criminal offences
2. Breaches of legal obligations
3. Miscarriages of justice
4. Environmental damage
5. Endangerment of an individual’s health and safety
6. Purposefully covering up an incident of the above points

A qualified disclosure can also cover a supposed “relevant failure” that occurred outside of the UK, or is in breach of international law. 

– Is it in the Public Interest?

Another element the claim must satisfy is whether or not it’s in the public interest. This means the whistleblower must have a genuine belief that the incident will,or is likely to, have an impact on other people. 

Incidents relating to personal matters are not generally eligible for protection under the ERA, however there are other avenues with employment law that can be used instead. 

– Has the Matter Been Raised to the Right People?

Many companies will have their own whistleblowing policy which will ideally need to be followed in the first instance. If the worker feels unable to do so, either in fear they will be negatively impacted by the complaint or if they suspect evidence may be hidden or destroyed, they can report the matter elsewhere. 

If a written whistleblowing policy exists within an organisation, it will be up to the complainant to prove they have a genuine belief that their manager or the company as a whole will attempt to cover up the incident. If they cannot, they may not have made a protected disclosure. 

In addition to the employer, it’s possible to raise a complaint to a number of other people/agencies, such as:

• The individual the complaint relates to
• A government minister
• A legal adviser
• Agencies such as HMRC or the Health & Safety Executive

A whistleblower is able to make the report anonymously, however the case may not be able to proceed if insufficient evidence is provided. They can also choose to provide their details to the necessary parties, but request confidentiality. 

– Is There a Genuine Belief in the Accusations?

To qualify as a protected disclosure, a potential whistleblower must have a genuine belief that a “relevant failure” is occurring, has happened in the past, or could possibly take place. It’s important to note that the complainant does not need to be correct in their assumption, meaning they will still be safeguarded by law even if their assertions are proved to be false.

Spurious claims or allegations made as the result of idle gossip will not be protected by the ERA. If a business can prove the complainant hasn’t acted in good faith, they may well be able to challenge the whistleblowing accusation. 

– Additional Health & Safety Disclosure Provisions

Extra protection is available for whistleblowers who raise concerns about health and safety practices. Under the ERA, an employee could not lawfully be dismissed if they act to prevent themselves (or others) from serious or imminent danger.

If there’s a health and safety representative present at the workplace, the complainant should usually raise the issue with them first — unless of course they have a feeling their fears will not be taken seriously. 

– Contracts of Employment & Settlement Agreements

A whistleblowing case can qualify as a protected disclosure even if there’s a confidentiality clause in the claimant’s contract of employment or settlement agreement. This is provided the claim adheres to the criteria listed above. Confidentiality provisions in settlement agreements specifically exclude whistleblowing. 

What Does Not Qualify as a Protected Disclosure?

There are several scenarios in which a whistleblower may not be protected by the ERA. These include situations where the claimant breaks the law by making the disclosure (such as divulging details covered by the Official Secrets Act), or if the information is subject to legal professional privilege. 

If the complainant decides to go to the media rather than report their concerns via the appropriate channels, they would lose their status as a protected whistleblower. The same is true if they do not believe in good faith that their employer has committed a “relevant failure”.

Cases where an individual is unhappy about how their personal data is being used by the business are also unlikely to qualify as a protected disclosure. This is unless the situation presents a wider issue that could be in the public interest. 

Is a Grievance a Protected Disclosure?

Under normal circumstances, personal grievances (such as discrimination, bullying, or harassment) are not classified as a protected disclosure. If, however, a case can be proven to be in the public interest, protection may be offered. In this scenario, the burden of proof rests with the complainant.
Should the matter not be in the public interest, a claimant can instead seek legal advice about how the matter can be dealt with — including the potential of going to an employment tribunal.

Understanding what qualifies as a protected disclosure is crucial for both employers and employees when dealing with whistleblowing cases. It’s therefore essential to speak to experienced employment law solicitors who can support you every step of the way.

The team at Thursfields has represented businesses and individuals across the UK, in cases involving small enterprises right the way through to large corporations. Our solicitors have acted within all areas of industry, such as manufacturing, technology and telecoms, retail, and healthcare. 

Because we’re a law firm that’s built around you, we’ll tailor our service based on your unique goals and requirements. If you’re an employee, we’ll work with you to determine whether your claim qualifies as a protected disclosure and ensure you stay on the right side of the law at all times — so you can be fully confident that you’re protected. Our team will work with you throughout the entire process, and bring the case to a swift resolution. 

For employers, we’ll help you determine whether a claim is protected by whistleblowing laws. Our solicitors will work tirelessly to ensure your interests are defended at all times, and even represent you at an employment tribunal if necessary. In addition, we can help you draw up a robust whistleblowing policy, as well as other company procedures. All of this forms part of our employment law services, which also includes senior executive severance, TUPE, and day-to-day HR advice. 

Whatever side of the fence you’re on, you can rely on Thursfields to deal with your whistleblowing case proactively and comprehensively. For more information about how we can help, get in touch with our team today.