Protected Disclosures -United Kingdom and Northern Ireland

The legislation and guidance UK and Northern Ireland

 

UK legislation on whistleblowing is contained in the Public Interest Disclosure Act 1998 (PIDA). PIDA amends and inserts a new part into the Employment Rights Act ,1996  (“1996 Act”). Further protection was afforded by the Enterprise and Regulatory Reform Act 2013 (ERRA) which came into force in July 2013.

A “qualifying disclosure” means any disclosure of information which in the reasonable belief of the worker making the disclosure is made in the public interest and tends to show one or more of the following: commission of a criminal offence, failure to comply with a legal obligation, a miscarriage of justice, danger to the health and safety of any individual, damage to the environment or the deliberate concealment of information falling within any of these categories.

The legislation protects a person making a protected disclosure. They have a right not to suffer a detriment and protection against dismissal as a result of making a public interest disclosure. Detriment is not defined in the 1996 Act but there is some caselaw on the subject.

Note the public interest element in the UK legislation. Disclosures which can be characterised as being of personal rather than public interest will not be protected. It will not be a public interest disclosure if the person making the disclosure commits an offence by making the disclosure.

Click here for the UK Government guide on whistleblowing for employees.

Since the introduction of PIDA successive UK governments have taken measures to strengthen whistleblowing policy and practice. See for example the Prescribed Persons (Reports on Disclosures of Information) Regulations 2017 which introduced a new requirement on prescribed persons to report on the  whistleblowing disclosures received.

Making a protected disclosure

 

For a qualifying disclosure to be treated as a protected disclosure, it must be disclosed to a particular category of person. The categories are as follows: 

Disclosure to employer: A qualifying disclosure will be a protected disclosure where it is made to the worker’s employer, either directly to the employer or by procedures authorised by the employer for that purpose or to another person whom the worker reasonably believes to be solely or mainly responsible for the relevant failure.

Disclosure to a “prescribed person”: A qualifying disclosure will be a protected disclosure where it is made to a person prescribed under the 1996 Act and the worker reasonably believes that the relevant failure falls within any description of matters in respect of which that person is so prescribed and that the information disclosed, and any allegations contained in it are substantially true.

The 1996 Act also deals with making a qualifying disclosure to a legal advisor and to a Minister.

Disclosure in other cases. A qualifying disclosure will be a protected disclosure where the worker reasonably believes that the information disclosed and any allegation contained in it are substantially true, he does not make the disclosure for personal gain and in all the circumstances it is reasonable for him to make the disclosure. In addition one or more of the following conditions must be met:

• that, at the time he makes the disclosure, the worker reasonably believes that he will be subjected to a detriment by his employer if he makes a disclosure to his employer or to a prescribed person,
• that, in a case where there is no person prescribed in relation to the relevant failure, the worker reasonably believes that it is likely that evidence relating to the relevant failure will be concealed or destroyed if he makes a disclosure to his employer, or
• that the worker has previously made a disclosure of substantially the same information to his employer, or to a prescribed person.

There is  also provision for disclosure of exceptionally serious failure .In this case the worker must:
reasonably believe that the information disclosed, and any allegation contained in it, are substantially true,
not make the disclosure for purposes of personal gain,
the relevant failure is of an exceptionally serious nature, and
in all the circumstances of the case, it is reasonable for him to make the disclosure having regard in particular to the identity of the person to whom the disclosure is made.

Whistleblowers who maliciously or deliberately raise a matter that they know to be untrue are not covered by whistleblowing protection and the law will not protect a qualifying disclosure where  making the disclosure amounts to a crime.

Definition of Worker

 

The term “Worker” is given an extended definition for the purposes of protected disclosures legislation and is broader than the usual definition which might exist for employment law. It can include agency workers, apprentices and trainees and reference should be made to the legislation for the extended definition. Readers may also be interested in a UK Supreme court case of May 2014 where it was held that a member of an LLP is a "worker" and entitled to whistleblowing protection .Click here to read  the judgment in Clyde & Co LLP and anor v Bates van Winkelhof and here for a press summary of the judgment.

Northern Ireland

In Northern Ireland the Public Interest Disclosure (Northern Ireland) Order 1998 (“1998 NI Order”) protects workers who blow the whistle about wrongdoing. This legislation has been amended by the the Employment Act (Northern Ireland ) 2016 which introduced some important changes including addition of the public interest test and  dispensing with the good faith requirement which existed until then.  Click the link  to access the page of the Department for the Economy on which you will find a link to a useful short guide to  the 1998 NI Order and click here for the NI Direct Government Services' page on blowing the whistle on workplace wrongdoing.

Please also click the link to access the recording and slides from a whistleblowing webinar of April 2023 held by Chartered Accountants Ireland Ulster Society. The title of the webinar is 'Whistleblowing - An Overview & top Tips' and it was delivered by Aisling Byrne from the Institute's  legal partner, A&L Goodbody.

The future

 

In April 2022 an All Party Parliamentary Group for Whistleblowing published a report discussing among other things a whistleblowing bill and why it says PIDA has failed. You can access a copy of the report here .

In April 2023 the UK Government launched a review by the Department for Business and Trade which will examine the effectiveness of the UK’s current whistleblowing framework. It will consider how the framework currently operates including PIDA and subsequent legislative and non-legislative interventions .It is expected that the research will be concluded by Autumn 2023 and you can read more about the review here. Also read the article of April 2023 by CMS Legal “ Government’s review of the Whistleblowing Framework”  with  commentary on the Government review .

 

These pages are provided as resources and information only and nothing in these pages purports to provide professional advice or definitive legal interpretation(s) or opinion(s) on the applicable legislation or legal or other matters referred to in the pages. If the reader is in doubt on any matter in this complex area further legal or other advice must be obtained. While every reasonable care has been taken by the Institute in the preparation of these pages, we do not guarantee the accuracy or veracity of any resource, guidance, information or opinion, or the appropriateness, suitability or applicability of any practice or procedure contained therein. The Institute is not responsible for any errors or omissions or for the results obtained from the use of the resources or information contained in these pages.