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Whistleblowing – the current position

The NHS has come under scrutiny in recent times because of its treatment of staff when they have ‘blown the whistle’ i.e. made a protected disclosure about its practices. It is considering taking measures to ensure that employees feel comfortable to raise concerns a part of their normal working life, including putting a whistleblowing ‘guardian’ in place in each NHS Trust, and having an independent national officer to review how complaints are handled.

The need for this kind of protection for workers came about when the courts saw a series of cases where, if an employee had disclosed information about, for example, an operational default in a business’s ship (Zeebrugge ferry disaster in March 1987), the consequences could have been avoided, but they didn’t in fear of backlash or ill treatment by the employer.

The Public Interest Disclosure Act is the legislation which provides the definition of a ‘qualifying disclosure’: those which attract protection for a worker from a related dismissal or detrimental treatment. A public disclosure will be protected if it entails disclosing information about a criminal offence being committed, for example, environmental or dangers to the health and safety of persons, amongst other things.

There are other requirements too that must be met for the disclosure to be protected. It must be made, in the individual’s reasonable belief, in the public interest. This counts out, for example, a disclosure from an individual about a purely private matter – about their own contract of employment, for example.

However, in almost a counter balancing move, the most recent amendments to whistleblowing law, there is no longer a need for a disclosure to be made in good faith in order to be a qualifying disclosure. The previous requirement for good faith meant that there had to be an honest intention in making the disclosure e.g. not for personal gain. Whilst a tribunal will not discount an unfair dismissal claim because the disclosure was not made in good faith, a lack of good faith will result in a decrease in compensation awarded to the claimant.

Dismissal for making a protected disclosure is an automatic unfair dismissal.

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Nicola Mullineux

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