What is Whistleblowing?
Following Frances Haugen’s interview with American news programme, 60 Minutes, whistleblowing has been all over the news and in the minds of many. The interview drew a huge amount of attention as it contained numerous allegations and statements about Facebook. You may be wondering, “what exactly is whistleblowing”?
Frances Haugen, a former Facebook employee, told the show’s host that Facebook prioritised profit over safety and provided various examples of Facebook acting against the public interest, such as the change of Facebook’s algorithm. It has been alleged that Facebook’s algorithm is optimising content that gets engagement or reaction. Frances Haugen states that Facebook’s own research showed that content that is “hateful, divisive or polarising” inspires people to anger and, subsequently, it is therefore easier to get engagement on that post than on those encouraging other emotions. She stated, “Facebook has realised that if they change the algorithm to be safer, people will spend less time on the site, they’ll click on less ads, they’ll make less money.”
So what is whistleblowing and how is it governed in the UK?
In the UK, whistleblowing is defined as the reporting of suspected wrongdoing or dangers in relation to an employer’s activities in regards to one or more of the following:
- a criminal offence;
- failure to comply with any legal obligation;
- a miscarriage of justice;
- the health or safety of any individual;
- environment damage; or
- the concealment of information in regards to any of the above.
The Public Interest Disclosure Act 1998 (PIDA) and sections 43A to 43L, 48 and 103A of the Employment Rights Act 1996 (ERA) which governs whistleblowing, provides protection for workers who ‘blow the whistle’ against their employers from detriment or dismissal.
Under PIDA, the dismissal of a worker will be automatically unfair if the principal reason for their dismissal is that they have made a “protected disclosure“. PIDA also protects workers from being subjected to any detriment because they have made a protected disclosure.
To be a protected disclosure, the worker must make an actual disclosure of information. Simply gathering evidence and/or threatening to make a disclosure is not sufficient to be protected by PIDA.
To qualify for protection, a worker must also have a “reasonable belief” that an offence has occurred, is occurring or is likely to occur and that the wrongdoing it is not in the public interest. As the protection is awarded to those with a reasonable belief, it is not necessary for the wrongdoing to have actually occurred, only that the worker genuinely and reasonably believed it to be true. In the event that such belief turns out to be wrong it will not make the belief unreasonable and ineligible of whistleblower protection as long as it was not made in bad faith.
However, the disclosure must be more than “unsubstantiated rumours” and the whistleblower must exercise some judgement on the evidence and the resources available to them that the information tends to show the transgression occurred.
What amounts to a “public interest” is not defined by legislation and it is up to the courts and tribunals to determine whether the protected disclosure was in the public interest, dependent on the facts of the case. The question is one to be answered on consideration of all the circumstances of the particular case, but the four factors below may assist:
- The numbers in the group whose interests the disclosure served. Although tribunals tend to be cautious about finding the public interest test satisfied purely based on the sheer number of affected workers, it is possible.
- The nature of the interests affected. Wrongdoing affecting very important interests are more likely to be in the public interest than minor or trivial wrongdoings.
- The nature of the alleged wrongdoing disclosed. Disclosure of deliberate wrongdoing is more likely to be in the public interest than the disclosure of unintentional wrongdoing.
- The identity of the alleged wrongdoer. The larger and more prominent the wrongdoer, the more likely the activities will engage the public interest.
To whom to make the protected disclosure
A protected disclosure must be made to one of the categories of people listed in the ERA, some of which are subject to further conditions. The categories listed in the ERA are:
- The employer;
- The person responsible for the relevant failure;
- Legal advisers;
- Government Ministers;
- A person prescribed by an order made by the Secretary of State; and
- A person, who is not covered by the list above, provided certain conditions are satisfied.
Whistleblowers have the right not to be subjected to any detriment (disadvantage) from their employer because of the protected disclosure.
This specifically includes the right not to be unfairly dismissed as a result of making a protected disclosure. However, a detriment can take many forms and not just a dismissal. For example, detriments can include:
- a demotion;
- access to resources being removed;
- being bullied or harassed;
- being excluded from events;
- being performance/capability managed;
- being required to work longer hours;
- being set unreasonable targets;
- being deprived of confidentiality including being named as the whistleblower;
- denied training;
- deprived of promotion;
- salary or benefits cuts;
- suspension; and
The protected disclosure must be the main reason for the detriment and it is for an employer to prove that the detriment was unrelated to disclosure.
Unlike most unfair dismissal claims, there is no cap on financial compensation in whistleblowing claims nor is there a requirement for two years’ minimum service.
Please note that there are exceptions where disclosures are not protected under PIDA or the ERA, such as:
- Legally privileged information. For example, a solicitor who discloses information provided by a client will not be protected.
- Where disclosure is a crime. If a person making the disclosure commits a crime in doing so, the disclosure cannot be a protected disclosure.
- Volunteers and those who are genuinely self-employed fall outside the protection.
- Parliamentary staff, intelligence officers and the armed forces protection is complex and too difficult to summarise for the purpose of this article, but we can provide assistance.
We can assist employers whose businesses are facing a whistleblowing claim. Our experienced employment team can help you by advising on the next steps that you need to take. We can also help any employees who wish to blow the whistle on their employers.