Employment tribunals - automatic unfair dismissal - whistleblowing
When a tribunal looks at your claim for dismissal, there are certain legal tests that they will apply. One of these tests is how long you've been in your job. Generally, you need to have worked for your employer for a certain length of time before you can make a claim for unfair dismissal.
However, there are certain reasons for dismissal which a tribunal will decide are automatically unfair. You will be able to make a claim for these reasons regardless of how long you've worked for your employer.
If you raise a concern about wrongdoing at work that is in the public interest, this is called whistlelowing. If you're dismissed for whistleblowing, you can make a claim for automatic unfair dismissal.
This page tells you more about dismissals for whistleblowing and how the law protects you.
If you've been dismissed because you've blown the whistle on an issue at work
There is some protection for workers who publicly raise concerns about wrongdoing in their workplace. Blowing the whistle is legally called making a disclosure in the public interest.
If you can show the main reason for your dismissal was that you raised concerns about wrongdoing at work, you will be able to make a claim for automatic unfair dismissal.
When are you protected from dismissal if you blow the whistle?
To be protected from dismissal, the information you disclose must be a qualifying disclosure. These relate to:
- a criminal offence
- a failure to comply with a legal obligation
- a miscarriage of justice
- a health and safety issue
- damage to the environment
- an attempt cover up any of the above.
It may later turn out that you were wrong and one of the situations which count as qualifying disclosures didn't exist. However, if you can show that at the time you raised a concern you reasonably believed it to be true, and you were making the disclosure in the public interest, you'll be protected from dismissal.
You won't be protected from dismissal if you only threaten to make a disclosure. You have to actually make the disclosure to be protected.
Are you making an allegation rather than disclosing information?
If you're making an allegation, rather than disclosing information, you won't be protected. For example, if you work in a hospital and simply say to a manager that health and safety requirements are not being met, this might not count as a protected disclosure.
You'll need to give some specific information to back up your claims. For example, you could provide evidence that the hospital wards haven't been cleaned for two weeks or that syringes have been left lying around.
How should you make the disclosure?
Any concerns you raise will only be a protected qualifying disclosure if you make them in an acceptable manner. This means that unless there are exceptional circumstances, you should try to sort out the matter internally before you go public. Your employer may have a policy about how to raise concerns, which you should follow. If you don't do this first, you may not be protected from unfair dismissal.
If you were dismissed because you disclosed information to someone other than your employer, you'll only be protected if the person you reported it to was:
- the person responsible for the activities you made the disclosure about, or
- a prescribed body listed as authorised to deal with those complaints.
How will a tribunal decide if you've been unfairly dismissed because of whistleblowing?
A tribunal will want to know the following things before they decide if you've been unfairly dismissed because you've blown the whistle:
Can you show that your employer's reason for dismissing you wasn't the real reason?
For example, perhaps you were dismissed or threatened with dismissal for poor performance shortly after blowing the whistle, yet there had been no problems with your work before.
If your employer says they dismissed you for this reason the tribunal will be suspicious. You'll need to be able to prove that your performance has not previously been an issue. You could do this by getting copies of your appraisals, or testimonials from your manager to show the tribunal.
Has your employer proved that their reason for dismissing you was the real reason?
if your employer hasn't proved that the real reason for dismissing you is the one they have given, they will need to disprove your claim that you were dismissed for whistleblowing. If your employer can't do this, your dismissal will be automatically unfair.
If you're considering whether to blow the whistle, or if you've been dismissed for whistle blowing, you can also get advice from Public Concern at Work.
Public Concern at Work
Telephone: 020 7404 6609