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Grievance or Protected Disclosure?

Many of you will already be experienced in handling grievances, but when is a grievance a protected disclosure? It’s best to consider this question at the outset, as there is no minimum period of service or financial cap on compensation for whistleblowing claims.

The Public Interest Disclosure Act 1998 added whistle-blower protection to the Employment Rights Act 1996. Protection against detriment and dismissal extends to most types of workers and employees who report malpractice by their employer.

To be protected, a worker must have made a qualifying disclosure and so meet the following criteria:

  1. There must be a disclosure of information.

It’s important to read the grievance carefully and to establish whether the grievance is conveying factual information. It may be tempting to dismiss a grievance as groundless allegations but case law has said that information and allegation are often linked. Make sure you review all communications referred to as, taken together, this may meet the required disclosure of information.

  1. The worker must have a reasonable belief in the information tending to show one of six types of failure.

The six types of failure are:

  • criminal acts,
  • breach of legal obligations,
  • miscarriages of justice,
  • danger to health and safety of an individual,
  • damage to the environment and
  • deliberately concealing information about any of these.

The worker must believe that the failure has taken place, is taking place or is likely to take place. Reasonable belief is what the worker believed for themselves at the time of the report and whether that is reasonable in all the circumstances. It doesn’t matter if their belief turns out to be wrong or if there isn’t a relevant failure in law.

  1. The worker must also have a reasonable belief that the disclosure is in the public interest.

In principle, grievances that deal with a worker’s own breach of contract or other self-interest will usually be private interests. This is unless there is a public interest element.

Relevant factors would include:

  • the number of people impacted,
  • the nature of the wrongdoing,
  • the identity of the wrongdoer,
  • the nature of the interests affected and
  • the extent of the wrongdoing.

Ultimately, it’s whether the worker reasonably believed that the disclosure was in the public interest.

The law stipulates the manner in which a disclosure must be made. A grievance made to the worker’s employer satisfying the above requirements would be a protected disclosure.

Another key aspect is that protected disclosures can be made either during or after employment so it’s important to deal with grievances from former workers with the same priority as those that come from within.

In summary: When you are dealing with grievances fully consider the qualification requirements, and get legal advice at an early stage.

 

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