Guide to Whistleblowing

Contributing Editors

In this new age of accountability, organisations around the globe are having to navigate a patchwork of new laws designed to protect those who expose corporate misconduct. IEL’s Guide to Whistleblowing examines what constitutes a protective disclosure, the scope of regulations across 18 countries, and the steps businesses must take to ensure compliance with them.

Learn more about the response taken in specific countries or build your own report to compare approaches taken around the world.

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01. Which body of rules govern the status of whistleblowers?

01. Which body of rules govern the status of whistleblowers?

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United Kingdom

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In the UK, the legal framework for whistleblowers is set out in the Employment Rights Act 1996 (as amended by the Public Interest Disclosure Act 1998 and the Employment and Regulatory Reform Act 2013).

The UK framework does not fully comply with European standards set out in the EU Directive 2019/1937/EU (the Directive).  Especially now that the UK has left the EU, it is not known whether UK whistleblowing legislation will be amended to reflect the workers’ rights and best practices introduced by the Directive.

Last updated on 29/07/2022

02. Which companies must implement a whistleblowing procedure?

02. Which companies must implement a whistleblowing procedure?

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There is no legal requirement in the UK for companies to implement a whistleblowing procedure or policy or any requirements as to the content or form of any procedure or policy if one is adopted. However:

  • The Department for Business Innovation and Skills has published guidance entitled Whistleblowing: Guidance for Employers and Code of Practice which identifies that it is best practice for an employer to have a whistleblowing policy or appropriate written procedure. The guidance can be found here.
  • The UK Corporate Governance Code set by the Financial Reporting Council recommends public-listed companies implement a whistleblowing procedure.
  • Financial services firms regulated by the Financial Conduct Authority or the Prudential Regulation Authority will be subject to regulatory requirements that require the operation of applicable whistleblowing procedures.
Last updated on 29/07/2022

03. Is it possible to set up a whistleblowing procedure at a Group level, covering all subsidiaries?

03. Is it possible to set up a whistleblowing procedure at a Group level, covering all subsidiaries?

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United Kingdom

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Yes. Employers can implement a whistleblowing procedure at a Group level.

Last updated on 29/07/2022

04. Is there a specific sanction if whistleblowing procedures are absent within the Company?

04. Is there a specific sanction if whistleblowing procedures are absent within the Company?

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United Kingdom

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No, because there is no underlying legal requirement under the Employment Rights Act 1996 for companies to implement a whistleblowing procedure or policy.

Last updated on 29/07/2022

05. Are the employee representative bodies involved in the implementation of this system? 

05. Are the employee representative bodies involved in the implementation of this system? 

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United Kingdom

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There is no specific legal requirement in the Employment Rights Act 1996 for employee representative bodies to be involved in (or otherwise agree to) the implementation of a whistleblowing procedure or policy. However, the rules in place with existing employee representative bodies may require consultation on any new policy or procedure and, in any event, it is best practice to involve employee representatives in the implementation of a whistleblowing system.

Last updated on 29/07/2022

06. What are the publicity measures of the whistleblowing procedure within the company?

06. What are the publicity measures of the whistleblowing procedure within the company?

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United Kingdom

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According to the Whistleblowing: Guidance for Employers and Code of Practice published by the Department for Business Innovation and Skills (BEIS), it is best practice for the whistleblowing policy or procedures to be in writing and easily accessible to all workers. BEIS also recommends that awareness of the policy or procedures is raised through all available means such as staff engagement, intranet sites and other marketing communications.

Last updated on 29/07/2022

07. Should employers manage the reporting channel itself or can it be outsourced?

07. Should employers manage the reporting channel itself or can it be outsourced?

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United Kingdom

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The reporting channel can be outsourced. Where an employer’s whistleblowing policy or procedure authorises disclosure to a third party (eg, an external hotline), UK law will treat a disclosure to the third party the same as a disclosure to the employer.

The Department for Business Innovation and Skills guidance on whistleblowing identifies that larger UK organisations may have a designated team who can be approached to make a disclosure. The guidance recommends that smaller organisations should have at least one senior member of staff as a point of contact for whistleblowers. However, the guidance also acknowledges that there are commercial providers who can manage a whistleblowing process on behalf of the employer.

Last updated on 29/07/2022

09. What precautions should be taken when setting up a whistleblowing procedure?

09. What precautions should be taken when setting up a whistleblowing procedure?

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The Department for Business Innovation and Skills guidance on whistleblowing recommends, as best practice, several practical considerations when setting up a whistleblowing procedure, including, but not limited to:

  • employers should provide training to all workers on how disclosures should be raised and to managers on how to deal with disclosures;
  • organisations should ensure that there are a range of alternative persons who a whistleblower can approach if a worker feels unable to approach their manager; and
  • any clauses in any settlement agreements or non-disclosures agreements (including confidentiality clauses in the employment contract) must not prevent workers from making disclosures in the public interest.
Last updated on 29/07/2022

10. What types of breaches/violations are subject to whistleblowing?

10. What types of breaches/violations are subject to whistleblowing?

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In the UK, only certain “protected disclosures” will be protected under the Employment Rights Act 1996. There are several conditions, one of which is that the disclosure of the information must “tend to show” that one or more types of failures or wrongdoing has occurred or is likely to occur (each a “relevant failure”):  

  • a criminal offence has been committed, is being committed or is likely to be committed;
  • a person has failed, is failing or is likely to fail to comply with any legal obligation to which he or she is subject;
  • a miscarriage of justice has occurred, is occurring or is likely to occur;
  • the health or safety of any individual has been, is being or is likely to be endangered;
  • the environment has been, is being or is likely to be damaged; or
  • information tending to show any matter falling under the categories above is being or is likely to be deliberately concealed.

There is no requirement that the qualifying disclosure must relate to a relevant failure or failures of the employer. The disclosure can relate to a relevant failure of the employer, an individual employed or engaged by the employer or a third party.

There is also no requirement that the relevant failure occurs or would occur in the UK. It could occur, or be occurring, outside of the UK.

The other conditions are set out in question 14.

Last updated on 29/07/2022

11. Are there special whistleblowing procedures applicable to specific economic sectors or professional areas?

11. Are there special whistleblowing procedures applicable to specific economic sectors or professional areas?

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The UK Corporate Governance Code recommends public-listed companies implement whistleblowing procedures.

Financial services firms regulated by the Financial Conduct Authority or the Prudential Regulation Authority will be subject to regulatory rules and requirements that govern the terms and operation of their whistleblowing procedures.

Last updated on 29/07/2022

13. Who can be a whistleblower?

13. Who can be a whistleblower?

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Whistleblowing legislation in the UK protects a wide range of individuals. The following individuals can be a whistleblower:

  • employees;
  • employee shareholders; and
  • an extended definition of workers, including:
    • agency workers;
    • self-employed medical practitioners in the NHS and student nurses/midwives;
    • police officers;
    • homeworkers and freelancers; and
    • trainees.

The level of legal protection will depend on the status of the individual (please see question 23).

Last updated on 29/07/2022

14. Are there requirements to fulfil to be considered as a whistleblower?

14. Are there requirements to fulfil to be considered as a whistleblower?

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Yes. In the UK, only certain “protected disclosures” will be protected under the Employment Rights Act 1996. A protected disclosure must satisfy three main conditions. It must:

  • be a disclosure of information;
  • be a “qualifying disclosure”, meaning that in the reasonable belief of the worker making the disclosure it is made in the public interest and tends to show that one or more types of failures or wrongdoing has occurred or is likely to occur (for details of relevant failures or wrongdoing please see question 10); and
  • be made under the specific methods of disclosure depending on the recipient of the disclosure.

Regarding the “methods” of disclosure (ie, to whom disclosure is made), the disclosure requirements range from limited requirements for an internal disclosure to an employer up to more stringent requirements for external disclosures to a third party outside of the employer’s organisation.

Minimum Requirements

A qualifying disclosure is made where the worker makes the disclosure to:

  • the employer;
  • a third party authorised by the employer to receive qualifying disclosures;
  • their legal adviser in the course of obtaining legal advice; or
  • to a Government minister if the worker’s employer is a statutory appointed individual or body (for example, an executive non-departmental public body or an NHS body).

In such cases, there are no additional requirements over and above the general conditions 1 and 2 set out above.  

Moderate Requirements

A qualifying disclosure is made where the worker makes the disclosure to:

  • a responsible person. In this instance, the worker must reasonably believe the relevant failure relates solely or mainly to:
    • the conduct of a person other than the employer; or
    • any other matter for which a person other than the employer has responsibility; or
  • any “prescribed persons” named in a relevant order. This includes, but is not limited to, HM Revenue and Customs, The Office of Communications (Ofcom), the Financial Conduct Authority and the Health and Safety Executive. However, in this instance, a worker must reasonably believe that:
    • the relevant failure is within the remit of the prescribed person; and
    • the information disclosed and any allegation contained in it is substantially true.

Stricter Restrictions

Under UK law, a worker may make an external disclosure to a third-party organisation (eg, the press, and union officials); however, for such disclosures to be protected four additional conditions must be met.

The worker must:

  • reasonably believe that the information they have disclosed and any allegation contained in it is substantially true;
  • not have made the disclosure for personal gain;
  • either:
    • reasonably believe (when they made the disclosure) that they will be subjected to a detriment by their employer if they make a disclosure to the employer or prescribed person;
    • (where there is no prescribed person) reasonably believe that if they were to make the disclosure to the employer, it is likely that evidence surrounding the relevant failure will be concealed or destroyed; or
    • have already made a disclosure of substantially the same information to their employer or a prescribed person.
  • The fourth and final test is that, in all the circumstances of the case, it must be reasonable for the worker to make the external disclosure.

However, where an external disclosure relates to an “exceptionally serious” failure the conditions are slightly less stringent. The conditions are:

  • the worker must reasonably believe that the information disclosed, and any allegation contained in it, is substantially true;
  • the worker must not make the disclosure for personal gain;
  • the relevant failure must be of an exceptionally serious nature (eg, rare cases of extreme public concern); and
  • in all the circumstances, it is reasonable for the worker to make the external disclosure. 
Last updated on 29/07/2022

15. Are anonymous alerts admissible?

15. Are anonymous alerts admissible?

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United Kingdom

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Yes. The Department for Business Innovation and Skills  guidance on whistleblowing recognises that it is good practice to have a facility for anonymous reporting. However, it recommends that workers should be made aware that if a disclosure is made anonymously it may be more difficult for the individual to qualify for protection as a whistleblower. There will be no documentary evidence linking the worker to the disclosure for an employment tribunal to consider.

Last updated on 29/07/2022

16. Does the whistleblower have to be a direct witness of the violation that they are whistleblowing on?

16. Does the whistleblower have to be a direct witness of the violation that they are whistleblowing on?

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United Kingdom

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No. The worker must have a “reasonable belief” that the information disclosed tends to show one of the relevant types of wrongdoing.

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17. What are the terms and conditions of the whistleblowing procedure?

17. What are the terms and conditions of the whistleblowing procedure?

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United Kingdom

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Under the Employment Rights Act 1996, there is no requirement to have a whistleblowing procedure and, therefore, there are no prescribed terms and conditions.

Last updated on 29/07/2022

18. Is there a hierarchy between the different reporting channels?

18. Is there a hierarchy between the different reporting channels?

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Yes. In the UK, in addition to the general conditions that amount to a “protected disclosure”, there is essentially a tiered system of disclosure depending on to whom the disclosure is made. The disclosure requirements range from limited requirements for an internal disclosure to an employer up to more stringent requirements for external disclosures to a third party outside of the employer’s organisation. Please see question 11 for further details.

Last updated on 29/07/2022

19. Should the employer inform external authorities about the whistleblowing? If so, in what circumstances?

19. Should the employer inform external authorities about the whistleblowing? If so, in what circumstances?

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A protected disclosure may trigger a requirement to inform an external authority. This will ultimately depend on the nature of the company, the protected disclosure and the relevant failure disclosed. For example, if the disclosure relates to a regulatory breach, a regulated employer may need to inform the Financial Conduct Authority, or a disclosure that indicates money laundering would need to be disclosed to the National Crime Agency.

Last updated on 29/07/2022

20. Can the whistleblower be sanctioned if the facts, once verified, are not confirmed or are not constitutive of an infringement?

20. Can the whistleblower be sanctioned if the facts, once verified, are not confirmed or are not constitutive of an infringement?

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No. There are no sanctions for false reporting under the Employment Rights Act 1996.  

While the worker must have a “reasonable belief” that the information disclosed tends to show one of the relevant types of wrongdoing, there is no requirement for the worker to prove that the allegations or facts are, in fact, true. Certain disclosures carry a higher test and require the worker to show that they believed the facts were “substantially true”.  Please see the stricter restrictions outlined in question 11.

To qualify as a protected disclosure the worker must reasonably believe that the disclosure is made in the public interest. There is no longer a legal requirement that the disclosure is made in “good faith”. However, tribunals do have a statutory power to reduce compensation for unfair dismissal by up to 25 per cent where the tribunal believes that the disclosure was not made in good faith. If a disclosure is deliberately falsely made, the whistleblower may be subject to disciplinary proceedings.

Last updated on 29/07/2022

21. What are the sanctions if there is obstruction of the whistleblower?

21. What are the sanctions if there is obstruction of the whistleblower?

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United Kingdom

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The Employment Rights Act 1996 does not provide for specific sanctions for obstructing a whistleblower. However, in the UK, workers are protected against suffering a detriment on the grounds of making a protected disclosure and the dismissal of an employee will be automatically unfair if the reason or principal reason for the dismissal is that they have made a protected disclosure. For further details of the scope of protection please see question 23.

Last updated on 29/07/2022

22. What procedure must the whistleblower follow to receive protection?

22. What procedure must the whistleblower follow to receive protection?

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To gain statutory protection, a whistleblower must follow the correct procedure for disclosing the qualifying disclosure as outlined in question 14.

Last updated on 29/07/2022

23. What is the scope of the protection? 

23. What is the scope of the protection? 

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There are two main types of protection for whistleblowers under the Employment Rights Act 1996: protection against being subjected to a detriment and against unfair dismissal. The type of protection an individual whistleblower has depends on their legal status. Employees have more protection than workers.

Detriment: All workers have a right not to be subjected to any detriment on the ground they have made a protected disclosure. The definition of worker is wide (as outlined in question 13).

A worker must have:

  • made a protected disclosure;
  • suffered an identifiable detriment; and
  • been subjected to the detriment by an act or deliberate omission of the employer, another worker or agent and this must have been done on the ground that the worker had made a protected disclosure.

There is no definition of “detriment” under the Employment Rights Act 1996. Detriment is interpreted widely. Examples include, but are not limited to:

  • suspending a worker;
  • disciplinary action;
  • changes to the worker’s role or workplace;
  • exposing the worker as a whistleblower; and
  • giving a bad reference.

Workers have three months from the date of the act or omission to bring a claim. Liability for detriment claims is uncapped.  In successful claims, a worker will be awarded a compensatory award to cover financial losses together with an injury to feelings award.

Automatic unfair dismissal: An employee will be automatically unfairly dismissed if the reason or principal reason for the dismissal is the fact that the employee made a protected disclosure. Workers do not have unfair dismissal protection under UK law.

An employee will be deemed to have been dismissed where:

  • the contract of employment was terminated by the employer (whether with or without notice);
  • the employee was employed under a fixed-term contract and the contract expired without being renewed on the same terms; or
  • the employee has been constructively dismissed.

The selection of an employee for redundancy is automatically unfair if the reason or principal reason for the section is that the worker made a protected disclosure.

Employees have three months from the date of termination to bring a claim. Employees do not need a minimum length of service to have protection. Compensation for automatic unfair dismissal is uncapped.

Last updated on 29/07/2022

24. What are the support measures attached to the status of whistleblower?

24. What are the support measures attached to the status of whistleblower?

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United Kingdom

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There are no specific “support measures” outside of the legal protection under UK whistleblowing laws (outlined in question 23).  However, the UK whistleblowing charity Protect operates a free, confidential whistleblowing advice line.

Last updated on 29/07/2022

25. What are the risks for the whistleblower if there is abusive reporting or non-compliance with the procedure?

25. What are the risks for the whistleblower if there is abusive reporting or non-compliance with the procedure?

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The Employment Rights Act 1996 does not provide for specific sanctions for abusive reporting. Please see question 20 for further details.  

The main consequence of non-compliance with the statutory whistleblowing procedure will be that the worker will not be deemed to have made a protected disclosure. As a result, they will not be in a position to bring a claim under the relevant whistleblowing protections.

Last updated on 29/07/2022