Whistleblowing Claims Guide

What is Whistleblowing?

Whistleblowing is the act of disclosing information about wrongdoing in the workplace. Under sections 43A to 43L of the Employment Rights Act 1996, workers who make a "protected disclosure" have the right not to be dismissed or subjected to any detriment because of that disclosure. The law is designed to protect workers who speak up about serious concerns, ensuring that wrongdoing can be exposed without fear of retaliation.

A disclosure is only protected if it meets specific legal requirements. You must disclose information (not just allegations), you must reasonably believe the information tends to show one of the 6 categories of wrongdoing, you must reasonably believe the disclosure is in the public interest, and you must make the disclosure to an appropriate person. If these requirements are met and you suffer dismissal or detriment as a result, you have a strong claim at employment tribunal.

What You Need to Prove

The Public Interest Test

Since the Enterprise and Regulatory Reform Act 2013, all protected disclosures must be made in the reasonable belief that they are in the public interest. This requirement was introduced to ensure that the law protects genuine whistleblowing about matters of public concern, not purely private employment disputes.

The leading case is Chesterton Global Ltd v Nurmohamed [2017] EWCA Civ 979. The Court of Appeal confirmed that "public interest" is not limited to disclosures affecting the general public. A disclosure can be in the public interest even if it primarily affects a smaller group, such as employees or customers. Relevant factors include:

• The number of people whose interests are affected by the wrongdoing
• The nature of the interests affected (e.g., health and safety vs. financial)
• The nature of the wrongdoing disclosed (e.g., deliberate vs. inadvertent breaches)
• The identity of the alleged wrongdoer (e.g., public body vs. private employer)

You do not need to use the words "public interest" when making your disclosure. The question is whether you reasonably believed the disclosure was in the public interest at the time. If challenged, be prepared to explain why you considered the matter to be more than just a personal employment grievance.

To Whom Should You Make a Disclosure?

The law provides different routes for making a protected disclosure, depending on the circumstances. The safest route is to disclose to your employer first. Under s.43C ERA 1996, a disclosure to your employer or to another responsible person in your organization (such as a compliance officer) is protected if it is a qualifying disclosure.

You can also make a disclosure to a "prescribed person" under s.43F ERA 1996. Prescribed persons are regulators or bodies with responsibility for the relevant area of wrongdoing. For example:

• Health and Safety Executive (health and safety matters)
• Environment Agency (environmental matters)
• Financial Conduct Authority (financial services wrongdoing)
• Care Quality Commission (health and social care)
• Information Commissioner (data protection breaches)

Disclosures to legal advisers are also protected under s.43D ERA 1996, provided you are seeking legal advice. Wider disclosures to the media or public are protected only in limited circumstances under s.43G and s.43H, where you reasonably believe you would be subjected to detriment by your employer if you disclosed internally, or the wrongdoing is exceptionally serious, or evidence is likely to be concealed or destroyed. Such disclosures carry additional requirements and are risky without legal advice.

How to Make Your Claim

Detriment vs Dismissal

Whistleblowing protection covers both dismissal and detriment. Under s.47B ERA 1996, you have the right not to be subjected to any detriment by your employer on the ground that you made a protected disclosure. Detriment means any disadvantage. Examples include:

• Being denied a promotion, pay rise, or bonus
• Being excluded from meetings, training, or opportunities
• Being given unfavorable work, shifts, or duties
• Being subjected to disciplinary action or performance management
• Being ostracized, ignored, or treated less favorably by colleagues or managers
• Having your concerns dismissed or being told to keep quiet

If you are dismissed, the claim is for automatic unfair dismissal under s.103A ERA 1996. The reason (or principal reason) for the dismissal must be that you made a protected disclosure. If you suffer detriment but are not dismissed, you claim under s.47B. You can bring a claim for detriment at any time during your employment and within 3 months less 1 day of the last act of detriment.

It is common to claim both detriment and dismissal in the same ET1 if you suffered a series of detriments leading to dismissal. Make sure to particularize each detriment, the date it occurred, and the evidence you have.

Interim Relief

If you are dismissed for making a protected disclosure, you can apply for interim relief under s.128 ERA 1996. This is a fast-track application that must be made within 7 days of the effective date of termination. If successful, the tribunal can order your employer to reinstate or re-engage you, or to continue paying your salary until the full hearing.

Interim relief is a powerful remedy but is only granted if the tribunal considers it "likely" (more than a 50% chance) that the dismissal was for making a protected disclosure. The test is higher than the normal "reasonable prospects" test. You will need strong evidence that:

• You made a qualifying disclosure
• The disclosure was protected (made to an appropriate person and in the public interest)
• The principal reason for dismissal was the disclosure

Interim relief applications are heard at a preliminary hearing, often within days of submission. You should seek legal representation if possible. If the application is refused, it does not prejudice your full claim, but it does signal that the tribunal has doubts about the strength of your case.

Tips for a Stronger Claim

Evidence You Will Need

Whistleblowing cases are highly fact-sensitive. The strength of your evidence will determine the success of your claim. You should gather and preserve the following:

• Evidence of the disclosure: Copies of emails, letters, meeting notes, or reports in which you raised the concern. If the disclosure was verbal, write a contemporaneous note recording what you said, to whom, and when.
• Evidence of the wrongdoing: Documents, photos, data, or other evidence showing the wrongdoing you disclosed. While not strictly necessary, this strengthens your case by showing your belief was reasonable.
• Evidence of detriment or dismissal: Dismissal letters, performance reviews, disciplinary records, emails showing unfavorable treatment, witness statements from colleagues who observed the treatment.
• Timeline: A detailed chronology showing when you made the disclosure and when each detriment occurred. This is crucial for establishing causation.
• Witness evidence: Statements from colleagues who can confirm the disclosure, the wrongdoing, or the detriment you suffered.

The tribunal will scrutinize whether the disclosure was the reason (or principal reason) for the dismissal or detriment. If your employer offers an alternative reason (e.g., redundancy, performance, misconduct), you will need to show this was a pretext and the real reason was your disclosure.

Common Pitfalls to Avoid

• Making allegations, not disclosing information: Saying "you are breaking the law" is not a disclosure of information. Be specific: provide facts, documents, or details that tend to show wrongdoing.
• Disclosing purely personal grievances: A complaint that your own employment rights have been breached (e.g., unpaid wages) is not automatically in the public interest. Consider whether the issue affects others or the public.
• Missing the 7-day deadline for interim relief: If you want to apply for interim relief, act immediately. The 7-day deadline is strict.
• Making a wider disclosure without meeting the additional requirements: Disclosing to the media or public without first disclosing internally (unless there is a good reason) can result in loss of protection.
• Resigning too quickly: If you are being subjected to detriment, document it carefully and consider whether you have a constructive dismissal claim before resigning. Remaining employed strengthens your position.

Related Guides