Who is Protected by Whistleblowing Laws? A Guide.

December 7, 2021

When former Facebook employee Frances Haugen announced the socials media giant's "unilateral control over 3 billion people", the term "whistleblower" made its way into mainstream media once more. In recent history whistleblowers have increasingly made headlines causing many to ask: who is protected by whistleblowing laws?

Whistle-blowing is a legal term that can often cause panic and confusion for employers and employees alike. While we might be broadly familiar with whistle-blowing because it hits the headlines (Facebook being a recent example), it is important to know what this means in practice and how whistle-blowing PR disasters can be averted. It's important firstly for staff members to know when and how to report and secondly, for employers to recognise and promptly investigate reports, alongside taking any necessary steps to resolve the issue.  To help, we've laid out examples of whistleblower activity, alongside a handy infographic to address who's protected, and who's not.

What are the benefits, and difficulties, of whistleblowing?

There are some dangerous, unethical and illegal practices that might have continued if someone within an organisation (who could see what was going on) hadn’t reported malpractice. We rely on these individuals (or whistleblowers) coming forward so that these concerns can be investigated and, if proven to be true, addressed. Lots of groups benefit when this happens:

  • Industries can evolve and identify good from bad practice
  • Customers or service users have confidence that businesses behave safely and lawfully
  • Employers have an opportunity to deal with issues before they escalate (e.g. by rectifying a health and safety failing before someone gets hurt)
  • Staff members feel secure in the workplace

However, someone might think twice about making a report or blowing the whistle if they thought they would get fired, or miss out on a promotion or pay rise because they had said something. The thought of being labelled as a ‘troublemaker’ by an employer and the potential consequences that might arise, will deter many from speaking up. That’s why the law steps in to protect whistle-blowers. If they have made a valid report (known as a qualifying disclosure) then their employer cannot:

  1. Dismiss them. This would be automatically unfair dismissal. Unlike ordinary unfair dismissal claims, whistle-blowers don’t need to have a minimum period of service to bring this claim and the award an Employment Tribunal can give the whistle-blower has no set maximum.
  2. Subject them to a detriment, which could be an act or a deliberate omission (e.g. being ostracised or not receiving a bonus). A whistle-blower who suffers a detriment due to the fact they made a qualifying disclosure could claim injury to feelings which, depending on the severity and impact on the individual, could amount to an award of (as of the date of publishing this article) between £900 and £45,600.  

So far, so good. Society benefits from whistle-blowing and the law therefore protects whistle-blowers by making sure employers cannot treat someone badly for making a valid report (and ensuring whistle-blowers are compensated properly if they are treated badly). The confusion begins to creep in when you realise:

  • Not all people within an organisation are protected.
  • The report must relate to specific topics and be made in the ‘public interest’.
  • For a report to count as a protected disclosure there needs to be a disclosure of information (as opposed to an allegation).
  • The report needs to be made to the correct entity/person. This is sometimes referred to as a prescribed person or prescribed persons.

Because of the nuances in whistleblowing legislation, sometimes explaining whistle-blowing can feel a bit like trying to explain the offside rule! But don’t worry, we’ve put together a nifty flow diagram to help give an indication of whether whistle-blowing (and the legal protections) might apply to a situation or not.  

Legal protection for whistleblowers

These scenarios are some examples of potential whistle-blowing dilemmas which arise in the workplace:

  • You’ve received a complaint from an employee containing serious allegations about their own treatment at work and malpractice by their manager. Should you treat this as whistle-blowing or is it a grievance instead?  
  • You’re a contractor and you’ve reported some questionable financial practices. The client has now terminated your contract and you suspect it’s because you said something. Is there anything you can do?
  • You’re a HR advisor supporting a hiring manager and they’ve rejected an application from one of their junior line reports for no obvious reason. You remember a few weeks’ ago that the line report raised a concern about the department’s environmental impact. Is this a red flag?
  • An employee is continually making unfounded allegations about legal issues and bad-mouthing certain managers. Is there anything you can do?  

If you think you might be facing a whistle-blowing scenario, or you’d like a legal adviser to help drafting a whistleblower policy, please get in touch. We can ensure your team knows what to do if a whistle-blowing situation ever arises.

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