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Who is protected if they blow the whistle?

Whistleblowing is a fast growing area in employment law, largely because compensation for whistleblowing claims is unlimited and employees do not require a minimum period of service in order to bring a claim (as they do with ordinary unfair dismissal).

But who is actually protected by this legislation, and could you inadvertently fall foul of this?

Whistleblowers are protected by the Public Interest Disclosure Act 1998 (PIDA, for short), which covers two main areas:

  1. an employee’s dismissal will be automatically unfair if the reason (or principal reason) for the dismissal is that they made a "protected disclosure"; and
  2. “Workers” are protected from being subjected to a “detriment” on the ground that they have made a protected disclosure.

For whistleblowing purposes, the term “worker” is defined very widely. As well as including employees and individuals who work under a contract to personally provide services (provided that they are not in business on their own account, e.g. an independent contractor), “worker” includes an eclectic mix of other categories of staff, such as:

  • homeworkers;
  • non-employees undergoing training or work experience as part of a training course;
  • self-employed doctors, dentists, ophthalmologists and pharmacists in the NHS;
  • Police officers;
  • student nurses and student midwives;
  • agency workers; and
  • individuals supplied via an intermediary (provided that the terms of the engagement are not set by the worker themselves). In this category, the “employer” is the person who sets the worker’s terms of engagement.

Of the above categories, the ones you are perhaps most likely to come across are the final two.

A recent Employment Appeal Tribunal (“EAT”) case considered the final category of workers, and whether it should be interpreted even more widely to ensure that a worker’s freedom of expression (under the European Convention of Human Rights) is protected.

In that case, a junior doctor made disclosures regarding patient safety to the organisation that arranged his placements at the hospital which employed him. He argued these were “protected disclosures” under whistleblowing law and brought a claim against that organisation (as well as against the hospital).

The Employment Tribunal and EAT rejected the doctor’s claim of whistleblowing against the organisation that placed him with the hospital. It concluded that even if he was a “worker” supplied via an intermediary, the fact that the organisation did not determine his terms of engagement meant that they could not be his “employer” for the purposes of a whistleblowing claim.

The EAT also emphasised that PIDA clearly sets out when legal protection applies, and that there was no need here for additional protection. This is good news for employers.

What does this mean for you or your business?

Although this is a helpful decision for employers, you should still tread carefully.

If someone who works with or for you makes any kind of “disclosure”, please seek legal advice to ensure that they are not covered by PIDA, as you could otherwise face an unexpected, unwelcome and potentially costly whistleblowing claim. 

What do you need to be doing now?

Take time to review your Whistleblowing Policy and make sure that it is up to date.

You should also ensure that managers, in particular, understand the policy, how to recognise a potential protected disclosure and what to do if that happens. Finally, make sure that managers are aware of the broad definition of who is caught by the definition of “worker”.

These notes have been prepared for the purpose of articles only. They should not be regarded as a substitute for taking legal advice.

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