Whistleblowers enjoy statutory protection from being subjected to a detriment or being dismissed as a result of making a disclosure which is both a "protected disclosure" and a "qualifying disclosure".

Historically that generally meant it had to be a disclosure made (a) to a specified target (such as the employer); (b) in good faith; and (c) in the reasonable belief of the worker to show that one of following had occurred, was occurring, or was likely to occur:

  • A criminal offence.
  • Breach of any legal obligation.
  • Miscarriage of justice.
  • Danger to the health and safety.
  • Damage to the environment.
  • The deliberate concealing of any of the above.

There was no requirement that the disclosure of information needed to be in the public interest, which meant that an employee could be protected as a whistleblower even if they had simply complained to their employer about an alleged breach of their own contract of employment.

However, on 25 June 2013, two significant changes were made to the whistleblowing regime:

  1. A disclosure will now only qualify if it is made by the worker in the reasonable belief of it being "in the public interest"; and
  2. There is no longer a requirement for disclosures to be made in good faith (although a Tribunal can reduce any compensation awarded by up to 25% where the disclosure is not made in good faith).

It is important to also note that there are plans to make employers vicariously liable for any detrimental treatment that a whistleblower suffers at the hands of other workers. There will, however, be a defence if the employer has taken all reasonable steps to prevent that treatment from occurring. It is not yet clear when exactly these new provisions will come into effect but it is expected to be later this Summer.

Consequently, the key action points for employers as a result of these recent and forthcoming changes are as follows:

  • Update your internal whistleblowing policies and procedures and communicate these to all your workers.
  • Make sure managers and HR are trained to recognise whistleblowing situations. Identifying potential whistleblowing scenarios at an early stage can help ensure you do not inadvertently fall foul of the whistleblowing legislation.
  • Ensure that all workers receive periodic training about whistleblowing and importantly, stress that they should not do anything to penalise other workers who may have blown the whistle.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.