What Are Protected Disclosures in England and Wales?

If wrongdoing occurs in the workplace, including criminal wrongdoing, your employees or workers may become aware of it. Consequently, they may decide to let you or someone else in the workplace know. Therefore, it is crucial that you understand when the law protects any person making protected disclosures. As an employer, you must act carefully when managing this matter. For instance, monitor how you treat the person disclosing this information, and ensure you are acting legally and protecting your employee or worker.

This article will explain the criteria for a protected disclosure. It will also explain how the law protects the person making it and when it may not. Finally, this article also guides you in terms of how you should respond to a protected disclosure.

What is a Protected Disclosure?

When an employee or worker is aware of wrongdoing in the workplace, they may disclose this. This is also known as whistleblowing. Where this is a qualifying disclosure, it is a protected disclosure. Therefore, the law protects the employee or worker for raising the wrongdoing.

While the law does not define the meaning of the term ‘disclosure’, it generally means it involves actual information rather than it being a concern or allegation. Therefore, it can be:

• made verbally or in writing; or
• a form of recorded information such as, for example, a video recording. 

Furthermore, it can concern alerting someone to information they were not aware of or that they already knew about. However, in order for it to be a protected disclosure, there must be: 

1. information disclosed; 
2. a belief that there is a public interest in the disclosure – meaning the wrongdoing has an impact on others rather than being a personal grievance;
3. a belief that disclosure is in the public interest is reasonable;
4. an understanding that the type of disclosed information concerns one of the six types of ‘relevant failures’; and 
5. a reasonable belief of the employee or worker that, when revealing the information, it concerned one of the ‘relevant failures’.

If one of the above five criteria is missing, the disclosure does not qualify as a protected disclosure. Furthermore, it is also essential that when a person is making a protected disclosure they can clearly point out information about it, such as:

• the date of disclosure;
• the time of disclosure;
• what information it was; and 
• what words were used.

What Are the Six Types of ‘Relevant Failures’?

As part of the five criteria necessary for the law to protect a disclosure, the wrongdoing must fall into one of the six types of ‘relevant failures’. These categories are:

1. criminal offences;
2. a breach of a legal obligation;
3. a miscarriage of justice;
4. an individual in danger in terms of their health or their safety;
5. environmental damage; or 
6. purposely covering up information about any of the above things.

The above types of ‘relevant failures’ could have happened in the past, could still be happening, could be suspected of happening in the future, or could be an allegation. They could also have occurred outside of the UK or may be a breach of foreign law.

Who Should the Protected Disclosure Be Made To?

For a qualifying disclosure to be treated as a protected disclosure, it must be disclosed to a particular category of person. The categories are as follows:

• the employer of the person making the disclosure;
• the person the disclosure concerns;
• a legal adviser;
• a government minister; or
• someone prescribed on an order made by the Secretary of State such as, for example, HM Revenue and Customers and the Health and Safety Executive.

A person not listed above could also have made the disclosure. However, they must meet particular conditions if this is the case. The person making the qualifying disclosure to one of the categories of persons above must make it with the reasonable belief that it is within their area and that the information is substantially accurate. If both of these do not apply, the qualifying disclosure may not be a protected disclosure.

What Are the Rules About the Protection Associated With Protected Disclosures?

When an employee or worker makes a protected disclosure, the law protects them. As an employer, you should note that the definition of a ‘worker’ for the purposes of protected disclosures is broader than the usual definition you may be aware of in employment law. This means that it does not only include:

• an employee who had a contract of employment; or
• a person who has any other contract to carry out work for another personally, other than a client, customer, professional or business. 

Instead, it also includes:

• homeworkers regardless of whether it is them or another carrying out the work;
• people who are not employed but are working or training as part of a training course, except for where it is for an educational institution;
• those self-employed in the NHS such as dentists, doctors, pharmacists and ophthalmologists;
• police officers;
• agency workers;
• student midwives and nurses; and
• Health Education England (HHE) junior doctors.

If an employee or worker makes a protected disclosure that results in dismissal, the court may see it as unfair dismissal. An employee or worker is also protected from any other unfair treatments due to disclosure. 

However, there are exceptions when the law may not protect a qualifying disclosure. For instance, where:

• the disclosure concerns legally privileged information;
• making the disclosure amounts to a crime; or
• where parliamentary staff or those in the armed forces are making the disclosure.

How Should You Deal With a Protected Disclosure?

As an employer, if your worker or employee raises a protected disclosure with you, you will need to decide whether to investigate further and what action to take. 

Whilst investigating and taking action, you must keep the employee’s or worker’s identity secret if they have asked for confidentiality and ensure you do the same for others as applicable. You must also ensure you abide by data protection law.

A person making a protected disclosure is protected by law against dismissal and detrimental treatment. Therefore, you must treat them fairly after they make their disclosure. Otherwise, they may have a case for an employment tribunal. You could also be found responsible for detrimental treatment or victimisation by others if you cannot demonstrate that you took all reasonable steps to prevent this from occurring.

Key Takeaways

When your employee or worker discloses wrongdoing in the workplace, if the disclosure qualifies as a protected disclosure, the law protects them when doing so. Therefore, you must not treat them detrimentally for having made the disclosure or dismiss them as a result. You are also responsible for taking reasonable steps to ensure others do not treat them detrimentally. You must understand the rules which make a disclosure a protected disclosure. This enables you to act correctly when faced with one to avoid repercussions such as an employment tribunal and the potential of the complaint being taken out of the workplace.

If you need help with understanding protected disclosures in England and Wales, our experienced employment lawyers can assist as part of our LegalVision membership. For a low monthly fee, you will have unlimited access to lawyers to answer your questions and draft and review your documents for a low monthly fee. So call us today on 0808 196 8584 or visit our membership page.

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