Settlement Agreements and Whistleblowing

Do you know when raising a concern might lead to you becoming a whistle-blower? Are you aware of who you would need to communicate that information to? Do you know what kind of disclosures attract whistle blowing protection? Can any employee blow the whistle or do you have to have completed the relevant continuous service to warrant protection?

Whistleblowing is the disclosure of an employer’s alleged wrongdoing. Employees who make such disclosures are protected by the Public Interest Disclosure Act 1998.

The law gives protections to whistle-blowers primarily in two ways. Firstly, the dismissal of an employee will be automatically unfair if the reason, or principal reason, is that the employee has made a protected disclosure. The same protection applies to selection for redundancy.

There is no financial cap on compensation in whistleblowing claims, and no requirement for an employee to have minimum period of continuous service. As a result settlement agreements may be used before any Employment Tribunal proceedings reach their conclusion. Without whistleblowing or discrimination elements, the compensation available for unfair dismissal is capped at the lower of a year’s gross salary or £76,574.

Secondly, an employee is protected against detrimental treatment from their employer on the ground that they have made a protected disclosure.

In order to make a protected disclosure, a worker must provide a qualifying disclosure of information. The worker must hold a reasonable belief that the disclosure reveals that one of following has occurred, is occurring, or is likely to occur:

  
  1. A criminal offence.

  2. Breach of any legal obligation.

  3. Miscarriage of justice.

  4. Danger to the health and safety of any individual.

  5. Damage to the environment.

  6. The deliberate concealing of information about any of the above.

A disclosure will only be a qualifying disclosure if the worker reasonably believes that the disclosure is "in the public interest”. There is no longer any requirement for the disclosure to be made in good faith.

The disclosure can be made to the worker's employer. It is possible that disclosure to third parties (government agencies, the media, etc) may also be protected in some circumstances.

The high profile case of Clyde & Co v Bates van Winkelhof will be heard by an Employment Tribunal in the autumn, after Mrs Bates Van Winkelhof won her supreme court case claiming that as a Partner of a law firm she was entitled to whistle-blowing protection as a worker.

If you believe you have suffered detrimental treatment having made a protected disclosure, please do not hesitate to get in contact.

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