Whistleblowing

To qualify for protection, a whistleblower must disclose information (i.e. not merely make an allegation) that in his/her reasonable belief is in the public interest and tends to show either that

• A criminal offence has been committed, is being committed or is likely to be committed
• A person has failed, is failing or is likely to fail to comply with a legal obligation
• A miscarriage of justice has occurred, is occurring or is likely to occur
• The health and safety of an individual has been, is being or is likely to be endangered
• The environment has been, is being or is likely to be damaged
• Or that information tending to show any of the above has been, is being or is likely to be deliberately concealed.

A dismissal is automatically unfair if the reason, or principal reason, is that the employee made a protected disclosure. All employees are protected from dismissal no matter how long they have been employed.

Any worker is protected from detriment on the ground s/he made a protected disclosure. A detriment might include demotion, a warning or harassment from other colleagues (for which an employer is vicariously liable). Employees are protected from dismissal if the principal reason for dismissal was that s/he made a protected disclosure. Workers can include casual staff and some contractors who are otherwise treated as self-employed. A member of an LLP was found to be a worker for the purposes of whistleblowing legislation.

The motivation of a whistleblower is no longer relevant to whether or not a disclosure is a protected disclosure, though disclosures made in bad faith can result in reductions to compensation. Whistleblowing for personal gain can still result in protection provided that you reasonably believed that the disclosure was in the public interest and it is made to your employer, in the course of obtaining legal advice or to a prescribed person. A salesman who whistleblew about accounting irregularities affecting his commission was found to be protected.

There is no need for qualifying service for a worker to be protected by whistleblowing legislation: an employee dismissed on day 1 will be unfairly dismissed if the principal reason was that s/he made a protected disclosure.

Whistleblowing outside the employer organisation still attracts protection from victimisation if

• It is to the person who has legal responsibility for the conduct about which the disclosure is made
• It is made in the course of obtaining legal advice
• It is to a “prescribed person” (i.e. relevant regulator)
• Or the worker has already made a disclosure to the employer or a prescribed person or reasonably believes disclosure to his/her employer will result in a detriment or evidence being be destroyed, the disclosure is not made for personal gain and it is considered reasonable to disclose to that person. In this latter case, breach of confidentiality is a factor to be considered when deciding whether it is reasonable to disclose in the circumstances.