Whistleblowing refers to reporting suspected wrongdoing in the workplace which affects others, such as the public.
Under the Public Interest Disclosure Act 1998 (“PIDA”), whistleblowers who meet certain conditions are protected from dismissal and/or detriments, for example, bullying or harassment because of their disclosure. The law treats such dismissals as automatically unfair, meaning employees can assert these rights from day one of their employment.
These protections apply to individuals who report a prescribed type of wrongdoing, such as a criminal offence, which they reasonably believe is in the public interest. This is known as a “protected disclosure”.
Although the PIDA came into force in 1999, recent case law is continuing to clarify its precise ambit.
The importance of status
The protection from dismissal applies to employees and the protection from detriment applies to workers (which includes employees). The definition of “worker” has been the subject of much case law in its own right, however, recent cases have also challenged this in the whistleblowing context.
In Sullivan v Isle of Wight Council, the claimant was an unsuccessful job applicant who reported that she had uncovered financial irregularities involving a trust whose trustee sat on the employer’s interview panel. When the employer refused to review this further, she brought a detriment claim.
However, the Court of Appeal held that the protection from whistleblowing-related detriments does not extend to external job applicants (other than certain NHS job applicants) as they are not “workers”. Therefore, the Employment Tribunal had no jurisdiction to consider Ms Sullivan’s claim.
Available compensation
It is well-established that compensation for automatically unfair dismissal is calculated in the same way as ordinary unfair dismissal, predominantly based on the claimant’s loss of earnings. However, there is no maximum cap in the whistleblowing context.
The recent case of Durey v South Central Ambulance Service has affirmed that compensation in detriment claims can include an injury to feelings award, in the same way as discrimination claims. This means that employers may still be liable for significant compensation even where the detriment does not cause the claimant direct financial loss.
Dismissals are also detriments
These differing remedies have meant that some claimants have attempted to argue that their dismissal was a detriment in its own right, thereby enabling them to claim an injury to feelings award without suffering any separate detriments.
In Wicked Vision v Rice, the claimant believed that he was dismissed because he made a protected disclosure. He sought to argue that his dismissal was both automatically unfair and a detriment.
The Court of Appeal agreed that he was able to pursue the detriment claim against his former employer on the basis that his manager’s act of dismissing him, for which his employer was vicariously liable, was a detriment in itself.
This decision has since been appealed to the Supreme Court and their decision is expected in the coming months. In the meantime, employees who are dismissed on alleged whistleblowing grounds are likely to plead both unfair dismissal and detriment claims arising from the same dismissal, exposing employers to greater potential liability.
What is next?
There are several changes to whistleblowing law on the horizon. For example, the Employment Rights Act 2025 will add sexual harassment to the prescribed types of wrongdoing which may amount to a protected disclosure when reported.
In view of the recent case law and upcoming reforms, employers should ensure that they have clear whistleblowing policies in place which HR/managers are trained on. This policy should explicitly prohibit staff from treating whistleblowers differently to others in order to minimise the risk of automatically unfair dismissal and detriment claims.
Ethan Diver is a solicitor at Taylor Walton Solicitors www.taylorwalton.co.uk
