The types of disclosure that are eligible for protection are known as 'qualifying disclosures'.
These are where the worker reasonably believes that the disclosure is being made in the public interest and at least one 'relevant failure' is currently happening, took place in the past or is likely to happen in the future.
Relevant failures can be:
- a criminal offence
- a miscarriage of justice
- damage to the environment
- the breach of a legal obligation
- a danger to the health or safety of any individual
- the deliberate covering up of information tending to show any of these matters
The same protection applies even if the qualifying disclosure concerns a relevant failure overseas or where the applicable law is not that of the UK.
Disclosures which can be characterised as being of a personal rather than public interest, will not be protected.
The belief does not need to be correct. The worker only needs to show that they held the belief and that it was a reasonable belief in the circumstances at the time they made the disclosure.
The disclosure is not a qualifying disclosure if:
- by making the disclosure, the worker has committed an offence, eg under the Official Secrets Act 1989
- the information should be protected from disclosure because of legal professional privilege, eg the disclosure has been made by a legal adviser (or their secretary) who has acquired the information in the course of providing legal advice
Qualifying disclosures made internally
A worker is protected if they make a qualifying disclosure to either:
- their employer - either directly or by using a procedure authorised by the employer for that purpose
- to another person who the worker reasonably believes to be solely or mainly responsible for the relevant failure
Ideally, you should have a whistleblowing policy that includes a procedure to follow if a worker wishes to make a qualifying disclosure.
Qualifying disclosures made externally
A worker is protected if they make a qualifying disclosure to an appropriate 'prescribed person'. These are certain statutory bodies - or people within them - who have the authority to receive disclosures relevant to the role of that particular body. Breaches in health and safety law, for example, can be brought to the attention of the Health and Safety Executive for Northern Ireland or appropriate local council.
For the disclosure to be protected, the worker must:
- reasonably believe the information and any allegation it contains are substantially true and is in the public interest to disclose
- reasonably believe they are making the disclosure to the relevant person or body
A qualifying disclosure is also a protected disclosure if it is made:
- to a government minister or a Northern Ireland Department Permanent Secretary by someone working in a government-appointed organisation - this could be directly or via departmental officials and in the public interest to disclose
- to a legal adviser in the course of obtaining legal advice - there are no further conditions attached
Other circumstances where an external disclosure is protected
A qualifying disclosure continues to be a protected disclosure if the conditions below are met.
Firstly, the worker must:
- not act for personal gain
- reasonably believe the information - and any allegation contained in it - is substantially true
In addition, one or more of the following conditions must be met:
- the worker must have previously disclosed the same information to their employer or to a prescribed person
- the worker reasonably believed they would be subjected to a detriment by their employer if the disclosure was made to the employer or a prescribed person
- in the absence of an appropriate prescribed person, the worker reasonably believed that disclosure to the employer would result in the destruction or concealment of information about the wrongdoing
Finally, it must be reasonable for the worker to make the disclosure. An industrial tribunal/arbitrator will decide whether the worker acted reasonably in all the circumstances, particularly taking into account:
- the seriousness of the relevant failure
- whether the relevant failure is continuing or likely to occur again
- whether the worker followed any internal procedures approved by the employer
- what action has, or might reasonably be expected to have, been taken where a previous disclosure was made to the employer or a prescribed person
- whether the disclosure breaches the employer's duty of confidentiality to others
- the identity of the person to whom the disclosure was made