Whistleblowing Protections and Employer Obligations

Whistleblowing occurs when a worker reports wrongdoing that they have witnessed in their workplace. UK law protects workers who make these reports from being dismissed or subjected to any detriment by their employer. The protections are set out in the Employment Rights Act 1996 (ERA 1996), as amended by the Public Interest Disclosure Act 1998 (PIDA).

Getting whistleblowing wrong is expensive. Compensation in whistleblowing claims is uncapped, and the reputational fallout from suppressing legitimate concerns can be devastating.

What is a protected disclosure?

A protected disclosure is a report of information that the worker reasonably believes shows one or more of the following types of wrongdoing:

The disclosure must be made in the public interest. Purely personal grievances – such as a complaint about the terms of an employment contract – do not qualify, even if they involve a breach of a legal obligation.

Who is protected?

Protection extends beyond traditional employees to a broad category of workers, including employees (full-time and part-time), agency workers, contractors personally performing work, trainees, apprentices, NHS practitioners and police officers. Genuinely self-employed contractors, volunteers and non-executive directors are generally not covered.

How to make a protected disclosure

The level of protection depends on to whom the disclosure is made:

Internal disclosure (to the employer)

This is the most straightforward route. A worker who makes a disclosure to their employer or, where relevant, to another person responsible for the matter, is protected if they reasonably believe the information disclosed tends to show one of the qualifying types of wrongdoing.

Disclosure to a prescribed person

Workers can also make protected disclosures to prescribed persons – regulators and bodies designated by the government. Common prescribed persons include:

For a disclosure to a prescribed person to be protected, the worker must reasonably believe that the information is substantially true and that the matter falls within the prescribed person’s remit.

Wider disclosure (media, MPs, the public)

Disclosures to the media or the general public receive protection only if additional, stricter conditions are met – including that the worker reasonably believes the information is substantially true, the disclosure is not made for personal gain, and it is reasonable in all the circumstances. In practice, internal disclosure or disclosure to a prescribed person is always the safer route.

Protections for the whistleblower

Unfair dismissal

An employee who is dismissed (or selected for redundancy) because they made a protected disclosure is automatically treated as having been unfairly dismissed. This is a “day one” right – there is no qualifying period of employment.

Compensation is uncapped. In ordinary unfair dismissal claims, compensation is subject to a statutory cap (currently £115,115 or 52 weeks’ pay, whichever is lower). Whistleblowing dismissals have no such limit.

Detriment

A worker who suffers any detriment short of dismissal because of a protected disclosure can bring a claim. Detriment includes demotion, disciplinary action, exclusion from meetings or opportunities, bullying, reduction in hours or pay, and poor references. The burden of proof shifts to the employer – once the worker establishes they made a protected disclosure and suffered a detriment, the employer must prove the detriment was not because of the disclosure.

Employer obligations

Establish a whistleblowing policy

There is no statutory requirement to have a written whistleblowing policy, but ACAS and regulators strongly recommend it. A good policy should explain what whistleblowing is, set out how workers can raise concerns, guarantee confidentiality so far as possible, confirm no worker will suffer detriment for making a disclosure in good faith, describe the investigation process and explain the right to raise concerns externally.

Investigate properly

When a disclosure is received, the employer should:

1. Acknowledge receipt promptly and confirm the process that will be followed
2. Assess the disclosure – determine whether it falls within the qualifying categories
3. Investigate – appoint an appropriate person (ideally someone independent of the area concerned) to investigate
4. Protect the whistleblower – ensure they are not subjected to any detriment during or after the investigation
5. Take action – address any wrongdoing identified and feed back to the whistleblower (subject to legal and confidentiality constraints)
6. Record and review – keep records of disclosures, investigations and outcomes

Train managers

Line managers are often the first point of contact for a whistleblower. They must understand how to recognise a protected disclosure (it does not need to use the word “whistleblowing”), the obligation not to retaliate, when to escalate and the importance of confidentiality.

Common employer mistakes

Practical steps

1. Draft a whistleblowing policy and make it accessible to all workers
2. Appoint a designated person (or persons) to receive and investigate disclosures
3. Train managers to recognise and handle disclosures appropriately
4. Protect confidentiality – only share the whistleblower’s identity on a need-to-know basis
5. Investigate every disclosure – even if it turns out to be unfounded, the process protects the employer
6. Never retaliate – any adverse action against a whistleblower, however justified it may seem, will be scrutinised by a tribunal
7. Keep records – document the disclosure, the investigation and the outcome
8. Review the policy annually and update it to reflect changes in legislation or best practice