Issues occur at work and are often of a personal or commercial nature, which are unlikely to be protected. However, sometimes, they may affect others and possibly be safeguarded.
Certain disclosures of information at work may qualify the worker for protection against resulting detrimental treatment.
What is a “qualifying disclosure”?
Broadly speaking, a qualifying disclosure is a disclosure of information which, in the reasonable belief of the worker, is made in the public interest and tends to show any of the following types of wrongdoing or failure:
- Criminal offences.
- Breach of any legal obligation.
- Miscarriages of justice.
- Danger to the health and safety of any individual.
- Damage to the environment.
- The deliberate concealing of information about any of the above.
The wrongdoing can be past, present, prospective, or merely alleged.
What is a “disclosure”?
The legislation is unclear about what amounts to a disclosure of information. However, case law shows that the disclosure can be made in writing or verbally but must convey facts (and not mere allegations of wrongdoing).
Is the disclosure “in the public interest”?
The relevant test is whether the worker had a reasonable belief that the disclosure was made in the public interest. In practice, this issue is fact sensitive.
When considering whether the worker had a reasonable belief, the Tribunal will consider: the size of the group whose interests the disclosure relates to; the nature of the interests in question; the extent to which those interests are affected by the wrongdoing disclosed; the nature of the alleged wrongdoing disclosed; and the identity of the alleged wrongdoer.
What is a detriment?
The worker will suffer a detriment if they have been disadvantaged at work in the view of a reasonable worker because they have made a qualifying disclosure.
Interim relief
If the detriment was dismissal, then the aggrieved employee may apply, swiftly, for “Interim Relief”. This is an application which, if successful, will provide the employee with an immediate remedy of “reinstatement” or “re-engagement” or, if the employer disagrees with that, an order for “continuation of the employment contract” to continue their employment (or pay) to the final hearing.
Our employment law specialists prepare whistleblowing policies, provide associated advice and representation in such claims. For further information or advice please get in touch with our employment team today.