You Are Being Punished for Making a Protected Disclosure
Workers who make protected disclosures (whistleblowing) about wrongdoing are protected from detriment and dismissal under the Employment Rights Act 1996, as amended by the Public Interest Disclosure Act 1998. There is no minimum service requirement and compensation is uncapped.
Quick Answer
If you have made a 'qualifying disclosure' in the public interest and have suffered detriment (dismissal, demotion, victimisation, or adverse treatment) as a result, you are protected under ERA 1996 ss.43Aโ43L. There is no minimum qualifying period of employment for whistleblowing claims, and compensation is uncapped. You must bring your claim within three months less one day of the detriment.
Full Explanation
The Public Interest Disclosure Act 1998 inserted a new framework into the Employment Rights Act 1996 (ERA 1996 ss.43Aโ43L) protecting workers who make 'qualifying disclosures' from detriment and dismissal. A qualifying disclosure is a disclosure of information that the worker reasonably believes, and reasonably believes to be in the public interest, tends to show one of six categories of wrongdoing: a criminal offence, a failure to comply with a legal obligation, a miscarriage of justice, a danger to health and safety, damage to the environment, or deliberate concealment of information about any of the above.
A qualifying disclosure becomes a 'protected disclosure' when made to a prescribed person (such as a regulator โ for example, the FCA, the CQC, or the HSE), to the employer itself, to a legal adviser in the course of seeking advice, or โ in certain circumstances โ more widely to the police or media. The widest disclosures (to media or the public) attract the strongest scrutiny and require the disclosure not to be made for personal gain, to be substantially true, and to be reasonable in all the circumstances.
Detriment as a result of a protected disclosure is prohibited by ERA 1996 s.47B. This covers any act or deliberate failure to act โ dismissal, demotion, suspension, exclusion from training, denial of promotion, increased workload, ostracism, or any other form of victimisation. If you are dismissed and the principal reason is the protected disclosure, the dismissal is automatically unfair under ERA 1996 s.103A.
A critical advantage of whistleblowing claims is that there is no minimum qualifying period of employment โ you can bring a claim from day one. Compensation is also uncapped, unlike ordinary unfair dismissal, and can include compensation for psychiatric injury and future loss of earnings. Interim relief โ an order requiring the employer to maintain the employment contract pending the hearing โ is available if applied for within seven days of the dismissal.
Before bringing a Tribunal claim, you must start ACAS Early Conciliation (a mandatory prerequisite). Keep meticulous records of every detriment suffered, the timing relative to the disclosure, and any communications from management that reveal a connection between the disclosure and the treatment. The burden shifts in some circumstances โ ERA 1996 s.48(2) โ once a prima facie case is established.
Legal Basis
- ยงEmployment Rights Act 1996 ss.43Aโ43L โ Protected disclosures
- ยงEmployment Rights Act 1996 s.47B โ Detriment in employment
- ยงEmployment Rights Act 1996 s.103A โ Automatically unfair dismissal
- ยงPublic Interest Disclosure Act 1998
What To Do
Identify the Qualifying Disclosure
Confirm that the information you disclosed was a qualifying disclosure โ that it concerned one of the six categories of wrongdoing and that you reasonably believed it to be in the public interest. Document precisely what was disclosed, when, to whom, and in what form.
Log Every Detriment With Dates and Evidence
Record every instance of adverse treatment since the disclosure โ who did what, when, and any witnesses. Note the timing relative to the disclosure โ this is often crucial evidence of a connection. Preserve emails, meeting notes, and any other relevant documents.
Raise a Grievance
Submit a formal written grievance stating that you believe you are being subjected to detriment as a result of having made a protected disclosure. This creates a formal record of your complaint and may help resolve matters without litigation.
Contact ACAS for Early Conciliation
Contact ACAS to start Early Conciliation before bringing an ET1 claim. This is a mandatory prerequisite. The EC period pauses the limitation period.
Submit an ET1 Claim
Submit an ET1 to the Employment Tribunal claiming detriment under ERA 1996 s.47B and/or automatically unfair dismissal under s.103A. If dismissed, also consider applying for interim relief within seven days of the dismissal.
Important Deadlines
Important Warnings
Not all disclosures of wrongdoing are protected โ the disclosure must be in the public interest, not merely in your own personal interest (Chesterton Global Ltd v Nurmohamed [2017]).
If you were motivated partly or substantially by personal gain, the disclosure may not be protected โ get legal advice before proceeding.
The seven-day deadline for interim relief after dismissal is extremely tight โ act immediately if you are dismissed in connection with a protected disclosure.