Employment – What Constitutes as a Protected Disclosure in Whisteblowing Cases?

Whistleblowing is a legal way for employees to expose misconduct in the workplace without facing repercussions. Protected disclosures are safeguarded by law, and employees who make them are shielded from negative consequences such as demotion or dismissal. If adverse effects occur, the employee can take their case to an employment tribunal. To be protected by law, the disclosure must qualify as a ‘protected disclosure’. Recognising what qualifies as a protected disclosure is crucial for both employers and employees in handling whistleblowing cases effectively.

A protected disclosure is a qualified disclosure made by an employee who believes their employer has engaged in wrongdoing. Under the Employment Rights Act 1996, if the disclosure meets specific requirements, the employee is protected from unfair treatment. Whistleblowing involves situations where an individual believes a criminal offense, breach of legal obligation, or violation of health and safety legislation has taken place. Protected disclosures can relate to events in the present, past, or future.

Protected disclosures aim to protect employees who make legitimate disclosures. The ERA defines a “worker” more broadly than some employers may realise, offering protection to various potential whistleblowers. Workers include employees, casual workers, home workers, agency staff, temporary employees, apprentices, individuals on work experience, training providers, and individuals working through personal service companies, but generally exclude the self-employed or Crown servants involved in national security matters.

To qualify as a protected disclosure, a whistleblower must meet specific criteria, such as making a qualified disclosure related to failures in criminal offenses, legal obligations, or environmental damage. The disclosure must be in the public interest, raised with the appropriate parties, and made following the company’s whistleblowing policy if available. The whistleblower must genuinely believe in the accusations, with additional provisions for health and safety concerns. Anonymity can be maintained, but evidence must support the case. Even if allegations are proven false, the employee is still protected by law if they acted in good faith. Health and safety disclosures receive additional protection, and whistleblowing cases are not subject to confidentiality agreements in employment contracts.

There are situations where a whistleblower may not be protected under the ERA, such as when disclosing information covered by the Official Secrets Act or legal professional privilege. Disclosing information to the media instead of using proper channels, lack of belief in employer wrongdoing, or personal grievances like discrimination or harassment may also disqualify them from protected whistleblower status.

Understanding what qualifies as a protected disclosure is essential for both employers and employees in whistleblowing cases. Experienced employment law solicitors, like Thursfields, can provide tailored support for individuals and businesses in various industries. They can help determine if a claim qualifies as a protected disclosure, offer representation in tribunals, draw up whistleblowing policies and procedures and guide you to ensure you understand your obligations.

Whether you are an employee or employer, Thursfields can effectively manage your whistleblowing case. For more contact us on 0345 20 73 728 or email us on info@thursfields.co.uk For more information about what constitutes as a protected disclosure, visit: What Qualifies as a Protected Disclosure? | Thursfields Law Firm

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