Whistleblowing In The Workplace: Lessons From ITV’s Malpractice

Whistleblowers play an important role in ensuring integrity and compliance to ethical standards by bringing wrongdoing in the workplace to light.

UK legislation provides protection for whistleblowers who report malpractice to their employers or third parties if they make what is known as a ‘qualifying disclosure’. 

A qualifying disclosure is a specific disclosure of information which, in the reasonable belief of the individual making it, shows one or more type of specified wrongdoing or failure that is taking place or likely to take place.

The six types of wrongdoing are set out in the legislation, as below:

(1) criminal offences;

(2) breach of any legal obligation;

(3) miscarriage of justice;

(4) danger to the health and safety of any individual;

(5) damage to the environment; or

(6) deliberate concealing of information about any of the above.

It does not matter if the wrongdoing is in the past, present or merely alleged and it can concern the employer, other employees or third parties, such as contractors.

The individual making the disclosure must also show they have reasonable belief that the disclosure of information communicated showed the specified wrongdoing and the disclosure must be in the public interest.

For a disclosure to be in the public interest, the whistleblower must show that their disclosure affects others and not just the whistleblower alone.

What amounts as a protected disclosure is a complex test with the burden on proof on the individual to show each part of the test is satisfied.   

The dismissal of an employee will be automatically unfair if the reason or principal reason for their dismissal is because they made a protected disclosure.  

Unlike in ‘ordinary’ unfair dismissal claims, where an employee requires two years or more service to be entitled to this protection, there is no length of service requirement for employees who have been dismissed for raising protected disclosures.

The law also provides protection from negative treatment, which falls short of dismissal and is known as detriment.

Employees and workers are both protected from detriment in the workplace for raising protected disclosures in their employment.

This can include a wide range of negative actions with common examples being bullying, demotion, denial of opportunities and unjustified poor performance reviews and disciplinary process.