Whistleblowing: for prescribed persons

Advice for prescribed persons on how to deal with whistleblowing disclosures.

1. Overview of whistleblowing
2. What qualifies as whistleblowing
3. Role of a prescribed persons in whistleblowing
4. Duty to report on whistleblowing disclosures

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Overview of whistleblowing

Whistleblowing is when a worker reports wrongdoing in the public interest.  

The Employment Rights Act 1996 protects workers in Great Britain who ‘blow the whistle' from being treated unfairly and from dismissal, if certain conditions in the Act are met. This is known legally as making a ‘protected disclosure'. 

For a worker to receive protection, they must:     

• reasonably believe that a disclosure is “in the public interest”

• reasonably believe that the disclosure shows that one or more type of wrongdoing listed in the Act has taken place, is taking place or is likely to take place. For example, a danger to health and safety

• make the disclosure through the proper channels. For example, to their employer or to a relevant regulator or organisation, known as a ‘prescribed person'

Whistleblowing law is different in Northern Ireland and this guidance only relates to Great Britain.  

Workers can raise concerns at any time about an incident that happened in the past, is happening now, or you believe will happen in the future. 

What qualifies as whistleblowing

To qualify for whistleblowing protection under the law, a worker must: 

• reasonably believe that their disclosure is about a certain type of wrongdoing

• reasonably believe that reporting the wrongdoing is “in the public interest”

• make the report through the proper channels

These conditions are explained further below.  

Disclosures of wrongdoing that count as whistleblowing 

A worker must reasonably believe that one or more of the following types of wrongdoing has taken place, is taking place or is likely to take place: 

• a criminal offence – for example, an employer committing fraud  

• a breach of a legal obligation – for example, an employer does not have the right insurance  

• a miscarriage of justice – for example, a worker has identified evidence that was not provided to a court that they reasonably believe would have changed the outcome of a case  

• someone's health and safety is in danger – for example, customers have been served contaminated food  

• damage to the environment – for example, new business activities are likely to pollute local rivers  

• sexual harassment – for example, a worker sexually harasses other workers 

• the deliberate concealment of information tending to show any of the above 

Public interest test  

A worker must reasonably believe that reporting the wrongdoing is “in the public interest”.  

Generally, this means the wrongdoing will impact others, not just the worker. For example, other colleagues or the public. 

In deciding if the disclosure is in the public interest a Tribunal would look at the facts of the specific case, but may consider the following four factors when determining whether a disclosure is in the public interest:  

1. The numbers in the group whose interest the disclosure served: for example, a larger number of people impacted by wrongdoing might be more likely to be considered in the public interest although not necessarily.  
2. The nature of the alleged wrongdoing and the impact of the wrongdoing disclosed: an assessment of whether the wrongdoing was marginal or indirect or important. A disclosure affecting a very important interest e.g. public health or substantial financial fraud might be more likely to meet the test even if the group affected is relatively small.  
3. The nature of the wrongdoing disclosed: If the wrongdoing was deliberate or accidental may be taken into account and where the wrongdoing was deliberate, this might be more likely to be in the public interest than an inadvertent wrongdoing affecting the same amount of people.  
4. The identity of the alleged wrongdoer: If the wrongdoing involves a high-profile person or large organisation, their actions may have had wider reach and therefore may be more likely to be considered in the public interest.   

But this will not always be the case. An employment tribunal or a court may consider other factors, such as the nature and impact of the wrongdoing and the identity of the wrongdoer. 

Who workers can make a disclosure to 

A worker must report the wrongdoing through the proper channels for their disclosure to be protected. 

They could make their disclosure to their employer or another person they think is responsible for the wrongdoing. A worker for a government department or statutory body can also make their disclosure to a government minister or Scottish minister.   

A worker can also make a disclosure to their legal adviser, in the course of obtaining legal advice.  

A worker may want to make their disclosure externally to a relevant authority or body. This will be a protected disclosure if it is made to a prescribed person, the worker reasonably believes that the wrongdoing falls within that person's prescribed remit, and reasonably believes that the disclosure (the information and any allegations) is substantially true. For example, whistleblowing disclosure made to the Financial Conduct Authority about financial crime.  

Disclosures to third parties  

If a worker makes a disclosure to a third party, such as to a media organisation or by posting on social media, it will only be protected in the following limited circumstances.  

A disclosure may be protected if all the following conditions are met:      

• the worker reasonably believes that the information disclosed, and any allegations contained in it, are substantially true
• the worker does not make the disclosure for personal gain
• it is reasonable for the worker to make the disclosure in the circumstances of the case

And if one of the following circumstances applies:  

• the worker reasonably believes they will be subjected to a detriment (adverse treatment) if they make the disclosure to their employer or to a prescribed person

• where there is no prescribed person and the worker reasonably believes that evidence will be destroyed or concealed if they make the disclosure to their employer

• the worker has already disclosed substantially the same information to either their employer or a prescribed person

• the disclosure relates to a failure of an ‘exceptionally serious nature'. Whistleblowing legislation does not define ‘exceptionally serious, this would be for an employment tribunal or a court to determine on a case-by-case basis

Role of a prescribed persons in whistleblowing 

Prescribed persons are designated by an order made by the Secretary of State and listed in The Public Interest Disclosure (Prescribed Persons) Order 2014. 

Read the list of prescribed people.

A prescribed person can receive whistleblowing disclosures (protected disclosures) from workers about matters within their remit.  

As a prescribed persons you may have investigatory and regulatory functions which you can act upon when relevant information has been disclosed to you. This can include further work beyond the initial contact: from a single follow-up call with the whistleblower to seek further clarity, up to a large piece of work investigating the organisation that has been reported.  

If the statutory functions of the organisation permit, you can encourage these organisations to have whistleblowing policies that assist in ensuring effective procedures are followed, making it more likely that concerns are raised internally and reducing the chances of escalation. 

Most prescribed persons must publish annual reports on disclosures received, this is required under The Prescribed Persons (Reports on Disclosures of Information) Regulations 2017). See ‘Duty to report on whistleblowing disclosures'.  

Non-protected disclosures 

Every prescribed person that interacts with the public receives complaints. Not all of these will be whistleblowing disclosures. In considering whether to treat a complaint as a whistleblowing disclosure, you should consider what qualifies as whistleblowing.    

Ultimately, whether a complaint is a whistleblowing disclosure can only be determined by an employment tribunal. As a general rule, you should treat any concerns about potential wrongdoing seriously and take steps to address them. 

Duty to report on whistleblowing disclosures

You must produce and publish an annual report on whistleblowing disclosures made to you under the Employment Rights Act 1996, except if you're exempt (list of exemptions below).  

This reporting period runs from 1 April to 31 March each year. 

The report must contain: 

• the total number of disclosures you received in the reporting period and that fall within your remit as a prescribed person (the prescribed person must reasonably believe the disclosure of information is a qualifying disclosure) 

• the number of disclosures where you decided to take further action in that period (whether, or not, that action was actually undertaken within that period) 

• an explanation of your functions and objectives 

• a summary of the type of action taken  

• a summary of how the information disclosed has impacted on your organisation's ability to perform its functions and meet its objectives 

For example, if an objective of your body is to improve services, it may be possible to say that the disclosures have led to an improvement in services in your sector (provided doing so would not identify any whistleblowers or the subjects of the whistleblowing). 

What counts as taking further action 

You must report on the number of disclosures where you decided to take further action. This could include the number of: 

• disclosures that were referred to an alternative body 

• disclosures that required further investigation 

• disclosures where you made recommendations to employers on how they could rectify the problems you found (either in relation to their whistleblowing policies and procedures, or in relation to the issues which form the substance of the whistleblowing disclosure) 

• organisations investigated that had whistleblowing policies in place 

• enforcement actions taken where you found evidence of wrongdoing 

What to include in a summary of the type of action taken 

Your summary of the action taken could include information on: 

• cases where the issue was resolved after first contact with the employer 

• any further investigations and their outcomes 

• any enforcement actions and their outcomes 

The report should demonstrate that for every disclosure you have received, you have: 

• given it reasonable consideration  

• dealt with it on a case-by-case basis  

• acted on it to a defined set of policies and procedures, ensuring a consistent approach 

Protecting confidentiality 

You must not include any case-specific information in your report which could lead to the identification of: 

• a whistleblower 

• the employer 

• anyone else involved 

You must not include anything which could compromise confidentiality of an ongoing investigation. 

When you must publish the report 

You must publish the report: 

• within 6 months of the end of the reporting period which runs for 12 months, from 1 April to 31 March

• on your organisation's website (or anywhere else you consider appropriate for bringing the report to the public's attention) 

The report may be included as part of another report which you publish, such as an annual report, or it may be a standalone report. 

Exemptions 

You're exempt from publishing the annual report if you're: 

• an MP 

• a Minster of the Crown 

• a Welsh Minister 

• a Scottish Minister 

• the European Securities and Markets Authority 

• an auditor appointed to audit smaller authorities