Whistleblowing – When is a Disclosure a ‘Qualifying Disclosure’

Whistleblowers receive significant protection under employment law allowing concerns and issues to be raised without fear of the employer. For example a worker who raises concerns about alleged unlawful or illegal practices by their employer cannot then be dismissed or treated less favourably due to them being ‘a troublemaker’. This remains the case even if the concerns raised turn out to be untrue or not of concern.

However in order to obtain the benefit of this protection the employee must demonstrate that the concerns raised amounted to a ‘qualifying disclosure’. The Employment Appeal Tribunal has recently re-affirmed the 5-stage test applied to such cases;

1. There must be a disclosure of information
2. The worker must believe the disclosure is made in the public interest
3. The belief must be reasonably held
4. The worker must believe that the disclosure tends to show one of the following
   1. that a criminal offence has been committed, is being committed or is likely to be committed,
   2. that a person has failed, is failing or is likely to fail to comply with any legal obligation to which he is subject
   3. that a miscarriage of justice has occurred, is occurring or is likely to occur
   4. that the health or safety of any individual has been, is being or is likely to be endangered,
   5. that the environment has been, is being or is likely to be damaged, or
   6. that information tending to show any matter falling within any one of the preceding paragraphs has been, is being or is likely to be deliberately concealed
5. That belief must be reasonably held

It was noted that confusion had grown up about the distinction between disclosing ‘information’ on the one hand, and merely ‘making an allegation’ (which would not amount to a qualifying disclosure) on the other, and re-stated the requirement for a statement or disclosure to have sufficient factual content and specificity to be capable of tending to show one of the matters listed in 4 above.

Employers need to be particularly conscious when receiving grievances or complaints which could amount to qualifying disclosures and tread carefully when assessing any disclosure. Of particular relevance at the moment are allegations of breaching health and safety rules and regulations around COVID and safety in the workplace.

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