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Public interest and whistle-blowing

At the moment, workers disclosing information about wrongdoing are protected in certain circumstances under the Public Interest Disclosure Act 1998. Despite its name, case law has established that there does not necessarily have to be a public interest element for an employee to get protected status when whistle-blowing (making a disclosure). Instead, employees can achieve protected status even when raising issues about alleged breaches to their own contracts. This subsequently might be used as grounds for a claim at an employment tribunal.

According to the Department for Business, Innovation and Skills (BIS), the intention of the Enterprise and Regulatory Reform Bill is to close this loophole that allows whistle-blowing claims that are of 'a purely personal interest'. The aim is to return 'the Act to its original purpose by introducing a public interest test'.

Qualifying public interest disclosures are those where the worker reasonably believes one or more of the following matters is either happening, has taken place, or is likely to happen in the future: a criminal offence; failure to comply with a legal obligation; a miscarriage of justice; a danger to the health and safety of an individual; damage to the environment; and any deliberate attempt to conceal any of the above.

Some commentators have said that introducing a public interest test might introduce uncertainty in the minds of potential whistle-blowers about whether they will be protected when they make a disclosure - which may discourage them from coming forward.

Workers who make a disclosure of wrongdoing can complain to an employment tribunal if they are dismissed or victimised for doing so. An employee's dismissal (or selection for redundancy) is automatically considered 'unfair' if it is wholly or mainly for making a protected disclosure.

Acas runs practical training courses in managing Discipline and grievance and how to conduct fair and reasonable Investigations. Visit the Acas Training and Business Solutions area for more information.

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