Whistleblowing: what is it and why is it on the rise?

Whistleblowing is on the rise; workplaces and employment tribunals are seeing an increase in employees blowing the whistle on wrongdoing in the workplace. The number of whistleblowing claims in the Employment Tribunal increased by 92% between 2015 and 2023.

The rise could be explained by the increased awareness of employees about the protections afforded to them, and by a trend of speak-up culture. More employers have whistleblowing policies in place and at least aim to publicise them. High-profile whistleblowing cases are widely reported.

What is whistleblowing?

Unfortunately, the law is complex, but the main principles can be set out.

An act of whistleblowing is making what is called a “protected disclosure”, providing information (usually to the employer) in relation to certain types of wrongdoing. There must be a reasonable belief that the information disclosed shows wrongdoing.

Wrongdoing, as set out in the legislation, includes the reporting of the following acts:

• a criminal offence (e.g. fraud)
• a health and safety risk
• risk or actual damage to the environment
• a breach of any legal obligation
• a cover-up of wrongdoing

The ‘worker’ (and this is a wider category than simply an ‘employee’) blowing the whistle must reasonably believe that the wrongdoing affects other people and not just them (this is called the ‘public interest test’).

How are whistleblowers protected?

The Employment Rights Act 1996 provides that a worker can claim automatic unfair dismissal if the reason, or principal reason, for their employment dismissal is that they made a protected disclosure. A dismissal will include a constructive dismissal (i.e. where they resign as a result of a breach of contract by the employer), and where they are selected for redundancy and the reason, or principal reason, is that they have made a protected disclosure.

The Employment Rights Act 1996 also provides that workers have the right not to be subjected to any detriment done on the ground that they have made a protected disclosure. Examples include being denied a promotion, being overly and unfairly supervised, or being bullied. Where an employee is subjected to a detriment by a colleague, the employer can  be vicariously liable.

In the employment tribunal, crucially unlike, for example, an ordinary case of unfair dismissal, there is no upper limit on the compensation amount that can be awarded in whistleblowing cases. An employee is also not required to have been employed for a period of time before being eligible to bring a whistleblowing claim.

Upcoming legal changes that could increase whistleblowing awareness

There are two proposed Bills that could further increase awareness of whistleblowing protections:

• The Employment Rights Bill 2024-2025 is making its way through the House of Lords. It is wide-ranging and sets out a large number of employment law reforms, one of which is to add sexual harassment as a new standalone category of wrongdoing for whistleblowing disclosures. Whilst reporting sexual harassment has always been capable of being a qualifying disclosure, this could encourage more victims of sexual harassment in the workplace to speak up.
• The Office of the Whistleblower Bill is a Private Members’ Bill that has had its first reading in the House of Commons. It proposes to establish an independent Office of the Whistleblower which will enforce standards for the management of whistleblowing cases, provide disclosure and advice services, and direct whistleblowing investigations. Whether the Bill ever becomes law, the debate is potentially further raising the profile of whistleblowing.

What should organisations be doing now in relation to whistleblowing?

Organisations can take the following steps, to both reduce potential whistleblowing and to provide support to staff after a protected disclosure has been made:

• Check and update the organisation’s whistleblowing policy: ensure that it clearly explains to staff how to raise their concerns when making a disclosure, and how managers should respond.
• Check and update the organisation’s sexual harassment policy: it should explain what constitutes sexual harassment, what an employee should do if they experience or witness sexual harassment, and how the organisation will deal with any complaint of sexual harassment.
• Implement staff training: this will enable employees to identify acts of whistleblowing and understand the organisation’s internal policies.
• Foster a culture of trust, transparency and openness: employees will then feel able to bring their concerns to the organisation without fear of reprisals and without the need to go straight to external regulatory bodies or pursue claims.
• Set in place appropriate and effective reporting channels: having a designated pathway for employees to report concerns or suspected misconduct within an organisation will help to build trust.

If you have any questions or concerns about whistleblowing, please contact employment lawyer Clive Howard.