UK: Whistleblowing In The UK

Last Updated: 19 June 2008
Article by Martin Warren

Whistleblowing has received media attention over the past month. The Chancellor has proposed to increase the Financial Services Authority's ("FSA") powers to offer protection to whistleblowers to try to prevent market manipulation, and this was followed by the well publicised case about the teacher who was dismissed following his claims that pupils were cheating in English GCSE exams. The Employment Tribunal ruled that the principal reason for the teacher's dismissal was that he had made a protected public interest disclosure to his employer and the examination body. The teacher was awarded almost Ł70,000 in compensation.

This article explains the protection given to whistleblowers and looks at the implications for employers.

The Employment Rights Act 1996 provides workers and employees who disclose wrong-doing by their employer with protective rights in certain situations.

In order to be protected, certain conditions must be met. Firstly the worker making the disclosure must have a reasonable belief that it is true and it must relate to one of the following:

  • a criminal offence;
  • a failure to comply with a legal obligation;
  • a miscarriage of justice;
  • the endangering of an individual's health and safety;
  • damaging the environment; or
  • concealing information in relation to any of the above.

Secondly, the disclosure must broadly be made in one of the following ways:

  • to the employer;
  • in good faith, to a prescribed body such as the FSA, HM Revenue and Customs or the Health and Safety Executive; or
  • in the course of obtaining legal advice;
  • in certain circumstances to a Government Minister; or
  • external disclosure e.g. to the police. Although this appears to be a catch-all provision the circumstances in which it will operate are very tightly regulated. The disclosure must be made in good faith, not for personal gain and must be reasonable in all the circumstances.

Given that to achieve protection the disclosure must be raised in a responsible way, disclosures to the media will only receive protected status in the most extreme circumstances. Certainly the rule of thumb is that such disclosures will not usually be protected.


A worker who has made a protected disclosure is able to bring a claim in the Employment Tribunal against her employer if he or she has suffered a detriment as a result of the disclosure. An employee who has been dismissed because of the disclosure can bring an unfair dismissal claim and is not required to have one year's service. Importantly, compensation is uncapped.

The protection against suffering detriment covers not only employees but also 'workers'. The definition of 'worker' encompasses a wide range of people, including agency workers, home-workers, trainees and some independent contractors.

HR provisions

Employers should ensure that they have a clear and comprehensive whistleblowing policy in place.

The whistleblowing policy should as a minimum:

  • make a clear statement that malpractice will be taken seriously and that allegations will be dealt with seriously, quickly and confidentially;
  • state that internal procedures should be followed save in exceptional circumstances;
  • give clear procedures to report suspicions or evidence of malpractice including to whom to report;
  • give details of the procedures the employer will follow to investigate disclosures;
  • make clear what the penalties are, if any, for making unfounded or malicious disclosures.

Employers must ensure that they provide an environment where the concerns of workers are treated seriously and dealt with properly to ensure that a worker raises issues of concern internally. This will make it more difficult for a worker to obtain protected status for an external disclosure which may damage the employer's reputation.

Recently, a Swiss Bank asked a US Judge to close down the website,(a whistleblowing website) as an employee of the Bank had disclosed details of the Bank's offshore practices anonymously. The Judge ordered the closure of the website, but it was later re-opened due to concerns about limitations on the right to freedom of speech1. Had this occurred in the UK it is unlikely that the employee would have obtained protected status as the disclosure was made anonymously and externally. More importantly for the employer was the extent of the damage to its reputation and the fact that it had to take legal action, which is likely to have been expensive and time consuming. Such action may have been avoided if the employee had felt able to raise their concerns internally.

Some employers, particularly those with US parent companies, offer anonymous whistleblowing helplines to comply with the Sarbanes-Oxley Act and to encourage employees to report concerns anonymously. Such helplines can appear attractive to employers, but anonymous allegations can be difficult to investigate. Furthermore, guidance issued by the EU highlights the fact that this sort of hotline arrangement may breach the data protection rights of those implicated by an anonymous accusation. For these reasons, the charity Public Concern at Work advocates a policy of open (albeit confidential) disclosures in preference to anonymous hotlines.


1 New Scientist Magazine, 23 February 2008, Issue 2644

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.

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