What are my rights as a whistleblower?
Edward Snowden, the former CIA worker who blew the whistle on the National Security Agency (NSA) PRISM program, has polarised opinion across the world. Is he a national hero or is he a traitor and a criminal?
Whistle blowers often find themselves in this position. They may not all be international news stories, but they have to make a decision between disclosing something they believe they have a moral obligation to expose and protecting their employers.
The definition of whistleblowing
The definition of whistleblowing is when an employee ‘makes a disclosure in the public interest’. The disclosure must be a ‘qualified disclosure’, for example their employer is doing something illegal, causing damage to the environment, not obeying health and safety laws, committing a criminal offence, or covering up any of the above.
It’s not an easy decision for an employee to blow the whistle on their employer and they would understandably have many concerns before doing so. Is whistleblowing breaking the law? Will they be fired? Can they get compensation?
Edward Snowden is on the run from the US authorities (even though no warrant has been issued for his arrest at time of writing) but whistleblowing in the UK is not a criminal act, as long as an employee does not break the law by whistleblowing (if they have signed the Official Secrets Act, for example).
Whistleblowers actually have certain legal rights and are protected under employment law in the UK, as long as they fulfil certain criteria and make a qualified disclosure.
How can I protect myself?
The best way to find out if an employee is protected under the law is to seek legal advice before making a disclosure.
Edward Snowden presumably will not be returning to his position with Booz Allen Hamilton, his employer which works for the National Security Association (NSA), but in the UK, employees cannot be dismissed by their employers for blowing the whistle if they fulfil certain criteria. If an employee is protected by employment law and they are fired, they will be able to claim unfair dismissal.
In order to be protected, the whistleblower must be an employee, agency worker, training with the employer but not employed, or a self-employed worker if they are supervised or working off-site. The length of their employment is not important.
In addition to fulfilling the above criteria, a whistleblower must make their disclosure with the full belief that they are reporting the truth and that they are telling the ‘right person’.
The ‘right person’ will depend on the situation. It may be the employer if that is the person required by the employment contract or company procedure. However, if the employee feels that they will be dismissed or treated unfairly if they go to their employer, or if they believe their employer will not act on the information or cover it up, the employer must blow the whistle to the correct ‘prescribed body’.
For example, whistleblowers disclosing information about statutory sick pay or maternity pay should make the disclosure to HMRC.
New laws on whistleblowing
After 25 June 2013 the law changed to insist that a whistleblower must believe that their disclosure is in the public interest. Whistleblowing for personal gain or malice will not result in protection for the employee.
If a whistleblower fulfils the criteria for protection under the law and they are dismissed by their employer, they can go to an employment tribunal. The tribunal may award compensation to the whistleblower and have them reinstated to their position. The compensation awardable to whistleblowers is not restricted to an upper limit like other employment claims.
If an employee is considering blowing the whistle on their employer, they should seek legal advice from a specialist solicitor before they make a disclosure in order to ensure they will be protected by the law.
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