"Whistleblower Protection in the UK"

by Skadden, Arps, Slate, Meagher & Flom LLP

On 25 June 2013, four key changes came into effect in the U.K. law protecting whistleblowers in the workplace. The first two changes are subtle amendments to the test applied to identify a protected disclosure, and the second two potentially broaden the scope of an employer’s liability for the acts of its employees. What does this mean for employers?


Since the Public Interest Disclosure Act was introduced in 1998, employees in the U.K. have had limited protection from detrimental treatment by their employers if they blow the whistle on their employer’s unlawful practices by making a “protected disclosure.”

Employees are able to seek compensation if they receive detrimental treatment from their employer on the ground that they have made a protected disclosure and, any dismissal where the reason (or principal reason) is that the employee has made such a disclosure is automatically deemed unfair. If the protected disclosure is the reason for the dismissal, the qualifying period of service to claim unfair dismissal (now two years) is not required and the cap on compensation for unfair dismissal (currently £74,200) does not apply.

However, as demonstrated by recent publicity surrounding the National Health Service (whose severance agreements, like those of many other employers, typically include so-called “gagging clauses” requiring the employee’s confidentiality), as well as series of claims in the Employment Tribunals, numerous issues exist surrounding protected disclosures, including disingenuous claims and demand for increased employee protection to encourage workers to come forward.

Removal of the Good Faith Requirement

As originally implemented, the Public Interest Disclosure Act required protected disclosures to be made “in good faith.” Following a series of cases where employees had made disclosures of matters that were in the public interest but failed in their unfair dismissal claims because their employers were able to show that the employee’s primary motive was to discredit the employer, the “good faith” requirement came under much scrutiny. The employee’s motive is rarely clear-cut and in a number of the unsuccessful claims the breakdown in the relationship between the employer and the employee is often inextricably linked to the tension caused by the employer’s conduct.

In the Fifth Report on the Shipman Inquiry (into the failure to identify Dr. Shipman’s now notorious serial murder of elderly patients), Dame Janet Smith questioned the good faith requirement as focussing the test for protected disclosures on the messenger, rather than the message, stating that “the public interest would be served [by encouraging disclosures], even in cases where the motives of the messenger might not have been entirely altruistic.”

The changes to the protected disclosure legislation introduced by the Enterprise and Regulatory Reform Act 2013 (the Act), address this point: for disclosures made before 25 June 2013, the disclosure must be made in good faith, but from 25 June 2013, this requirement does not apply. The employee’s motive in making the disclosure is, however, still relevant, as any compensation awarded to the employee can be reduced by up to 25 percent if the disclosure has been made in bad faith.

In the Public Interest

In place of the good faith requirement, the employee must now have a reasonable belief that their disclosure is “made in the public interest.” The change in the legal test is intended to address the situation that arose in a number of cases, culminating in Parkin v. Sodexho, where employees were able to rely on their own grievances about their employer’s breach of their individual contracts of employment or failure to follow due process as protected disclosures. These claims would no longer succeed unless they also give rise to an issue that is in the public interest (Department of Business Innovation and Skills Policy Paper June 2013). There is no prescribed test for what is in the public interest, and this will inevitably lead to case law on the point, but the expectation among employment lawyers is that it will be rare that breaches of the employer’s legal obligations (for example financial irregularity, discrimination, health and safety, environmental and criminal issues) are not in the public interest. There is likely to be a “triviality” threshold in practice, however, and being “in the public interest” is not the same as “of interest” to the public.

Extension of Liability: Colleagues’ Actions

Although the replacement of the good faith requirement with the public interest test makes a subtle difference to the circumstances when a disclosure will be protected, where an employee has a genuine reason to blow the whistle they are likely to be protected from detriment. Employers need to focus on how they will respond to such disclosures to ensure that the detriment does not occur and the more significant change for employers is the extension of liability to fellow employees.

Following the Court of Appeal’s decision in NHS Manchester v. Fecitt [2012] employees have not had a remedy where they have been victimised by a colleague for making a protected disclosure, even where the employer has done nothing to address the co-worker’s conduct. This was a clear deterrent to genuine disclosures.

The Act now provides that workers should not be subjected to a detriment at the hands of a co-worker, for example, in a case where an employee has made a disclosure about a colleague’s unlawful conduct.

Individual liability

A co-worker can now be individually liable for subjecting a colleague to a detriment and, therefore, added as a co-respondent to any subsequent claim in the Employment Tribunal (in much the same way as co-workers can be named respondents in discrimination claims if they are the perpetrator of the discriminatory act).

The worker will have a defence if his actions are in reliance on a statement by the employer that the detriment does not contravene the Act and it is reasonable for the co-worker to rely on the employer’s statement.

Vicarious liability

Furthermore, the employer can now be liable for the co-worker’s actions, whether or not the employer is aware of or approves the conduct in question. The test will be whether the co-worker’s actions were in the course of his employment. Assuming that existing case law relating to tortious conduct is followed, the detriment in question should be in connection with what the co-worker is employed to do. For example, if the co-worker is the employee’s line manager and the detriment occurs in the course of the employee’s performance review, it clearly would be covered.

Employer’s Defence

The employer will have a defence to any claim about a worker’s conduct if the organisation can demonstrate that it “took all reasonable steps” to prevent the worker from “doing that thing” or “doing anything of that description.” This defence mirrors that already in place for employers to defend claims of vicarious liability for their workers’ discriminatory acts in breach of the Equality Act 2010.

As for equality and bribery, to benefit from this defence employers in the U.K. should therefore introduce and proactively implement effective whistleblowing policies identifying what amounts to a protected disclosure, the action to be taken when a disclosure is made and the potential disciplinary sanctions for victimising co-workers for making such a disclosure.

Download PDF

Written by:

Skadden, Arps, Slate, Meagher & Flom LLP

Skadden, Arps, Slate, Meagher & Flom LLP on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Custom Email Digest
Privacy Policy (Updated: October 8, 2015):

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.


JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at info@jdsupra.com. In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at: info@jdsupra.com.

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.