Deciding whether a disclosure attracts protection under whistleblowing law involves looking at the context in which it was made, rather than simply the words used. And it is not necessary for such a disclosure expressly to identify the specific type of wrongdoing alleged on the part of the employer.
Even though a whistleblower’s primary purpose in making a disclosure was private in nature, it could still pass the test of showing that it was ‘made in the public interest’ and thereby acquire legal protection.
An employer, seeking to defend its reputation, subjected an employee to an unlawful detriment in the manner in which it publicly denied his whistleblowing allegations but he failed to show that the employer’s actions were on the grounds that he had made a protected disclosure.
Where the real reason for dismissal of a worker is because they made a protected disclosure and that fact has been hidden from the decision-maker by a person in the ‘hierarchy of responsibility above the employee’, the dismissal is automatically unfair, even though the decision-maker has relied upon an invented reason for dismissal in good faith.
A worker’s complaint to HR that he was being defamed by rumours that he had breached confidentiality was capable of amounting to a protected disclosure under the whistleblowing provisions of the Employment Rights Act.
Excluding judges – and all office holders – from whistleblowing protection is a breach of their human rights.
It is unlawful to subject an individual to a detriment or dismiss them on the grounds that the employer perceived them to be considering making a protected disclosure.
An employee suffered whistleblowing detriments following an allegation that his supervisor had been taking a patient’s food.
Two company directors were personally liable for their part in dismissing an employee on whistleblowing grounds.
An employee did not make protected disclosures when she complained to her employer about bullying, harassment, inappropriate behaviour and lack of managerial support over a safeguarding issue.
Where an employee’s employment has been terminated due to a protected disclosure a tribunal can award compensation for long-term loss of earnings or ‘stigma damages’ even if the employee didn’t actually advance such a claim.
To base the test of whether a whistleblowing disclosure is ‘in the public interest’ purely on the numbers affected would be ‘too mechanistic’ says the Court of Appeal. The question of whether a disclosure is in the public interest depends on the character of the interest served by it, rather than simply on the numbers of people sharing that interest.
Beatt v Croydon Health Services NHS Trust
It is irrelevant that the employer genuinely believes an employee’s disclosure is not protected. A disclosure will be protected if it meets the statutory conditions in the Employment Rights Act 1996 - and this is an objective test. If the employer dismisses the employee for making a disclosure that a tribunal later finds was protected, the dismissal will be automatically unfair.