The return of ITV’s Malpractice for a second season has gripped viewers once again with its tense, emotionally charged portrayal of life inside a pressured NHS hospital.
This time, the spotlight turns sharply onto whistleblowing, as a medical professional finds themselves under investigation after raising serious concerns about patient safety and institutional failings.
While the storyline is fictional, it resonates deeply with real-world challenges faced by healthcare workers and employees across regulated sectors. The fear of retaliation, whether through dismissal or detriment ,often leaves individuals feeling trapped when they witness wrongdoing at work.
However, the law does offer protections for those who speak out in the public interest. Whistleblowing is a legally defined act with safeguards under employment law.
In this article, our Personal Employment Lawyers explore the legal protection afforded to whistleblowers.
What is a protected disclosure?
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.
Who to report whistleblowing concerns to?
When considering who to report your concerns, the starting point is to check any whistleblowing policy your employer may have in place which sets out the correct procedure to follow.
Whilst employees are encouraged to raise concerns openly to ensure a fair and effective investigation, if you are concerned about your identity being known then you should raise this with your employer who should provide the option for you to raise matters confidentially and only disclose your identity where necessary to those involved in investigating your concern.
It is recommended to document concerns in writing and collate evidence, so you have a clear paper trail of the disclosure of information in case it is challenged and this can be used as evidence if matters escalate to an Employment Tribunal.
Can whistleblowers be dismissed?
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.
Compensation and Remedies
Compensation for whistleblowing dismissal claims can be potentially costly for employers as there is no cap in compensation for losses, unlike in ‘ordinary’ dismissal claims.
A dismissed employee also has the option to apply for ‘interim relief’ for continuation of their employment before the final hearing.
This is rarely sought but can have a substantial benefit for a claimant if successful as they will continue to receive their full pay and benefits until the final hearing.
For detriment claims, a whistleblower can claim an award for ‘injury to feelings’ where an individual is compensated for non-financial detriment they have suffered because of their employer’s treatment, such as longstanding stress and anxiety.
Contact Our Whistleblowing Solicitors
Whilst the emotional and reputational risks are real in the show, the legal system does offer clear and serious protections so do not feel that you have to suffer in silence.
If you're facing pressure at work after raising concerns, or you're unsure whether your disclosure is protected, our specialist employment lawyers can help. Contact Myerson's Employment Team today for clear, confidential advice.
0161 941 4000
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Anjali Brown
Associate
Anjali has experience acting as an Employment solicitor. Anjali has specialist expertise in a range of employment matters, both contentious and non-contentious.
About Anjali Brown