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Employment tribunals - automatic unfair dismissal - whistleblowing

This advice applies to England

If you raise a concern about wrongdoing at work that is in the public interest, this is called whistleblowing. If you're dismissed for whistleblowing, you can make a claim for automatic unfair dismissal.

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 2 years or more 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 don’t need to have worked for your employer for 2 years to make a whistleblowing claim. 

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

The law protects you if you've raised concerns about wrongdoing in your 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.

You can only make a claim for automatic unfair dismissal if you’re an employee. If you’re not sure, check your employment status.

If you’re a worker you won’t be able to make a claim for automatic unfair dismissal - find out if you can make a detriment claim instead.                     

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

You might find out later you were wrong and the disclosure you made wasn't a qualifying disclosure. However, you'll be protected from dismissal if you can show that at the time you raised a concern you had a reasonable belief it was in the public interest. You'll have to show it wasn't only in your own personal interest to disclose the information.

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 say 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 might be protected if the person you reported it to was either:

If you disclosed the information to someone else, talk to an adviser.

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.

Further help

If you're considering whether to blow the whistle, or if you've been dismissed for whistle blowing, you can also get advice from Protect.

Protect

Telephone: 020 3117 2520
Website: protect-advice.org.uk

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