Legal protection for those raising concerns

The Public Interest Disclosure Act 1998 (PIDA) is often called the ‘whistleblowing law’.  It is there to protect all ‘workers’ (as defined in the Employment Rights Act 1996 – this classification is broader than, but includes all employees), who have made a ‘protected disclosure’ from being treated unfairly as a result of raising a concern.  Protection against discrimination on the grounds of being a whistleblower, or appearing to be a whistleblower, is also given to applicants for work with some NHS employers (including NHS boards).

A concern is considered a ‘protected disclosure’ when it meets this legal test:  the person raising it must reasonably believe that it is in the public interest to raise a concern, and that the information available shows that the following has happened, is happening or is likely to happen.

For example:

  • a criminal offence
  • an act that creates a risk to health and safety
  • an act that damages the environment
  • a miscarriage of justice
  • a breach of any other legal obligation not being met
  • concealment of any of the above being covered up

A full list is available in the legislation here: http://www.legislation.gov.uk/ukpga/1998/23/section/1

It is important to note that making a ‘protected disclosure’ does not mean that the concern must be raised or investigated in a certain way. It provides legal protection for workers who suffer detriment after raising concerns.  If a worker is unfairly dismissed or treated unfairly as a result of raising a concern, they can claim compensation under PIDA at an employment tribunal.

PIDA encourages workers to make the ‘protected disclosure’ to their employer first, if possible. However, this is not essential as it recognises that workers may have good reason for raising a protected disclosure outside their workplace (either before or after reporting the concern to their employer).  PIDA lists the 'prescribed persons’ with whom workers can raise a concern with, beyond their own employer, and still have their employment protected. 

The Independent National Whistleblowing Officer (INWO) is being added to the list of organisations, so NHS employees are able to raise their concerns direct.  The INWO will approach each case on the basis that it is better for the organisation involved to identify the learning and improvements that are needed.  However, they can agree to accept concerns direct if they do not feel it is reasonable to expect the person to use their employer’s whistleblowing procedure.  They will decide whether to do this case by case, but could take into account, for example, whether the organisation is very small or the issue involves very senior staff.  In limited circumstances the INWO may be able to help make sure concerns are dealt with appropriately. This may include monitoring the progress of an investigation.

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Updated: March 10, 2021