The Employment Rights Act 1996 (s 43A to 43L) allows for workers to make a ‘public interest disclosure’, i.e. whistleblowing. This is where the disclosure is made in the reasonable belief that it is made in the public interest, for example where a criminal offence has been committed or a miscarriage of justice has occurred.
Where a disclosure is in the public interest, the worker ‘qualifies’ for protection against unfair dismissal or being subjected to detriment as a result of having made that disclosure.
Qualifying whistleblowing disclosures can be made to the employer or, for example, the health and safety representative at the workplace. They can also be made to a legal adviser and, in some circumstances, a Minister of the Crown (or a member of the Scottish Executive).
Whistleblowing to ‘Prescribed Persons’
S43F says that the qualifying disclosure can also be made to a ‘prescribed person’, i.e. a person (body) prescribed by an Order made by the Secretary of State of the Department for Business, Energy and Industrial Strategy. The original Order in 2014 contained a schedule of prescribed persons such as the Care Quality Commission (CQC), the Health and Safety Executive (HSE), the Commissioners for Her Majesty’s Revenue and Customs (HMRC), the Financial Conduct Authority (FCA) and the Environment Agency.
On 11 October 2019, the Public Interest Disclosure (Prescribed Persons) (Amendment) Order 2019 amended the list of prescribed persons, effective 05 November 2019. The amendments are detailed in s2 of the 2019 Order and:
- Adds the Commission for Equality and Human Rights as a new prescribed person
- Adds the Regulator of Social Housing as a prescribed person in place of the Homes and Communities Agency
- Updates the names of Social Care and Social Work Improvement Scotland and the Independent Office for Police Conduct, and
- Updates the matters which whistleblowers can report to the European Securities and Markets Authority, Financial Conduct Authority and Welsh Ministers
The Public Interest Disclosure (Prescribed Persons) (Amendment) Order 2019 updates the Public Interest Disclosure (Prescribed Persons) Order 2014 to which the Employment Rights Act 1996 refers. Therefore, this updated list applies to qualifying whistleblowing disclosures made in Great Britain.
There have been no changes to the prescribed persons workers in Northern Ireland can make a qualifying disclosure to. These persons remain as per the schedule in the Public Interest Disclosure (Prescribed Persons) (Amendment) Order (Northern Ireland) 2014. This schedule is referred to in the Employment Rights (Northern Ireland) Order 1996.
Workers in Northern Ireland working under the 1996 Order may want to read the ‘Public Interest Disclosure Guidance’ by the Department for the Economy.
Whistleblowing protections for workers in Northern Ireland are similar to those for workers in Great Britain – but it’s not exactly the same, like so many things!