Workers have access to a great deal of information which it may be in the public interest to disclose. They are often the first to know if something is seriously wrong in their organisation.

Until now many workers concerns are not heard and many do not speak up at all because of fear of reprisals for 'blowing the whistle'.

This welcome Private Members Bill, which is presently making its way through Parliament with Government support, seeks to address the issue. It is expected to become law.

It aims to protect workers who blow the whistle about certain issues in the public interest. Workers will be protected from unfair dismissal and from suffering any other detriment if they make a 'qualifying disclosure' in a 'specified manner'.

Qualifying Disclosure

A qualifying disclosure means any disclosure of information which, in the reasonable belief of the worker making the disclosure, tends to show one or more of the following six matters:

1 That a criminal offence has been, is being 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 person has been, is being or is likely to be endangered. 
5 That the environment has been, is being or is likely to be damaged. 
6 That information tending to show any of the above matters has been, is being or is likely to be deliberately concealed.

The Test

Vitally, the test for a qualifying disclosure contains a subjective test of belief. A worker will be protected if s/he reasonably believes that the information disclosed tends to show one of the above six matters even if this belief turns out to be mistaken.

However, a worker will not qualify for protection if s/he commits an offence by making the disclosure or if the disclosure is one to which legal professional privilege applies.

The Bill does not limit protection to disclosure of information relating to events in the UK alone but to events worldwide; so that, for example, a worker of a pharmaceutical company disclosing information about her/his employer's activities damaging the environment in South America will be protected.

Disclosure: How and to Whom?

Once a worker establishes that the information which s/he wishes to disclose - in good faith - is a qualifying disclosure s/he must then follow one of the six specified procedures for disclosure to be protected.

First, disclosure to an employer or other responsible person.

Secondly, disclosure to a legal adviser if made in the course of obtaining legal advice. 
Thirdly, disclosure to a Minister of the Crown where the worker's employer is an individual appointed under an enactment by a Minister of the Crown or a body whose members are so appointed.

Fourthly, there is provision in the Bill for the Secretary of State to make an Order prescribing individuals to whom protected disclosures may be made. The scope of these proposals is as yet unclear.

It appears to be intended that the Secretary of State will prescribe different individuals for different subject matters and that a worker must be careful to provide disclosure to the correct specified person to obtain protection.

Fifthly, a worker may be protected if s/he discloses information to persons other than an employer, legal adviser or Government Official if s/he jumps through the following additional hurdles.

S/he must establish that s/he reasonably believes that the information disclosed and any allegation contained in it are substantially true; must not make the disclosure for purposes of personal gain and must satisfy the tribunal that in all the circumstances of the case it is reasonable for her/him to make the disclosure. S/he must in addition satisfy a tribunal that any one of the following three conditions are met;

1 That at the time s/he makes the disclosure s/he reasonably believes that s/he will be subjected to a detriment by her/his employer if s/he tries to follow the employer or prescribed person disclosure route. 
2 Where there is no prescribed person for the sort of disclosure which the worker wishes to make s/he reasonably believes that it is likely that evidence will be concealed or destroyed if s/he makes a disclosure to his/her employer direct. 
3 That the worker has already made a disclosure to the employer or a prescribed person.

In assessing reasonableness under this fifth route a Tribunal will look amongst other things at the identity of the person to whom disclosure is made.

Exceptionally Serious Breach

Finally, a worker may leapfrog any or all of the above procedures where the disclosure is of an 'exceptionally serious breach' and the worker can establish that in all the circumstances it was reasonable for him or her to make the disclosure.

In assessing reasonableness under this final provision the Bill provides that regard must be had to the identity of the persons to whom the disclosure is made. It is proposed that the Bill will protect not only employees but also freelance and agency staff.

Protection

A dismissal for making a protected disclosure will be automatically unfair and a complaint may be made to a tribunal if a worker suffers any detriment as a result of making a protected disclosure.

It is not yet clear what compensation workers will receive if they are successful in complaints to the tribunal. The Bill gives the Secretary of State power to issue regulations setting out a different manner of calculation of compensatory awards from those which presently apply to ordinary unfair dismissal claims.