Protected disclosure is a term used in the Public Interest Disclosure Act 1998 and the Employment Rights Act 1996 (ERA 1996). It refers to certain disclosures of information by an employee or a worker which mean that the individual is protected as a whistleblower.
To make it clear whether a disclosure is protected of employers have responded appropriately, this article will help answer these queries or contact Premier Legal directly and our solicitors will assist you.
What are the Protected Disclosure Regulations in the UK?
When an employee makes a qualifying disclosure, they will be protected by law from any form of unfair treatment at work. This falls under the Employment Rights Act 1996 and includes dismissal as they have reported some form of dangerous or illegal activity they have witnessed at work, whether it be from the past, present or potential.
However, for the individual to be protected, their complaint my fall within the scope of the whistleblowing law.
What are the Criteria for Protected Disclosure?
In order for a whistleblowing disclosure to be deemed as protected disclosure, these requirements and criteria must be met:
- The disclosure must be considered as a “qualifying disclosure” within the meaning of the ERA
The ERA defines a qualifying disclosure as information that demonstrates one or more of the following:
- A criminal offence has been committed / being committed / likely to be committed
- A person has failed / is failing / is likely to fail to comply with any legal obligation to which they are subject
- A miscarriage of justice has occurred / is occurring / is likely to occur
- The health and safety of any individual has been / is being / is likely to be endangered
- The environment has been / is being / is likely to be damaged
- Information tending to show any matter falling within any one of the above has been / is being / is likely to be deliberately concealed
The individual must have reasonable belief that their information shows at least one of these failures has happened / is happening / is likely to happen. They must also believe this was honestly held in all circumstances taking hold at the time of disclosure. If this allegation is made maliciously or results from gossip, protection will not be given.
- The disclosure must be in the public interest
The individual must have reasonable grounds for believing that the allegation will have, or is likely to have, an impact on other people and that they are acting in the public interest. If it is just a personal grievance such as bullying, harassment or discrimination, protection for whistleblowing will not be given. Other means of protection are available for this though.
Also, the information will not be considered as a qualifying disclosure if the individual commits as offence when making this disclosure. No matter whether it was made in the public interest, prosecution for the commission of an offence may be made and protection will not be given.
- The disclosure must be made to an appropriate or prescribed person or body
How does the protected disclosure have to be made? It’s important that individuals follow the written whistleblowing company policy, however failure to do so may not risk the protection afforded under the ERA. This may state that the disclosure must be made directly to the employer, an appropriate regulatory body or an outside agency.
The risk of reporting the disclosure anonymously is that the allegation may not be able to be taken further if there is not sufficient information. Alternatively, individuals can provide their name but ask for anonymity. The risk of reporting the disclosure to the media is they will lose any legal rights as a whistleblower.
Who Can Make a Protected Disclosure?
Individuals must be worker in order to make a protected disclosure. The ERA defines a ‘worker’ as employees, agency workers, apprentices and trainees. In an employment contract, if there is a confidentiality clause or gagging clause within a settlement agreement, this will not prevent the worker from making a disclosure.
If the individual no longer works for the employer but are making a disclosure about them, they are still protected. Also, if the employer has a policy where unprotected individuals can still make a disclosure to them, they must follow the process in this policy. Individuals that are not protected by law when making a disclosure include the self-employed, volunteers, non-executive directors, members of the armed forces, solicitors or barristers, or crown employees.
What is Protected Disclosure Detriment?
By law, whistleblowers are protected from detriment. This refers to their experience after they have disclosed information, for example:
- Being treated worse than before; this could be bullying or harassment
- Having their situation made worse; this could be having their hours reduced or training opportunities rejected
Whistleblowers are also protected from unfair dismissal, so if an individual is dismissed for disclosing information, this will be treated as automatic unfair dismissal. Do you believe you have been a victim of unfair dismissal? Contact Premier Legal today and discuss your situation with us directly, so we can help guide you towards the next steps.
