Whistleblowing

'Whistleblowing' is the commonly used term for making a protected disclosure under Part IV of the Employment Act 2006.

To make a protected disclosure, there are various elements that must be met. These can be broken down as follows:

1. The 'What': The content of what is being disclosed must fall within one of the categories of the Employment Act 2006
   
   
2. The 'How': The way the disclosure is made must be in accordance with obe of the prescribed routes under the Employment Act 2006
   
   
3. The 'Link': A worker must show that because they made a protected disclosure, they suffered a detriment, or, in the case of an employee, suffered a detriment or were dismissed as a result
   
   

The 'What'

This refers to the content of what a worker is blowing the whistle on. The disclosure must fall within one of the categories set out in the Act. If it does, it is known as a 'qualifying disclosure'.

The Act states that the test for a qualifying disclosure is as follows:

A 'qualifying disclosure' is any disclosure of information which the worker making the disclosure reasonably believes ought to be disclosed in the public interest and has a tendency to show one or more of the following:

• That a criminal offence has been committed, is being committed or is likely to be committed
  
  
• That a person has failed, is failing or is likely to fail to comply with any legal obligation to which they are subject
  
  
• That a miscarriage of justice has occurred, is occurring or is likely to occur
  
  
• That the health or safety of any individual has been, is being or is likely to be endangered
  
  
• That the environment has been, is being or is likely to be damaged; or
  
  
• That information tending to show any matter falling within any of the preceding paragraphs has been, is being or is likely to be deliberately concealed

As of 1 April 2025, a public interest test was introduced into this requirement. This means that a worker cannot make a qualifying disclosure purely out of self-interest; it must be in the public interest.

The 'How'

If the content requirements above are met, the next stage is to turn the qualifying disclosure into a protected disclosure. This means that the disclosure must be made in the correct way, for example through the appropriate channels.

The Act sets out a number of prescribed routes, which can be grouped into two main categories.

Specific routes

These specify particular people or bodies to whom a disclosure may be made, including:

• The worker’s employer
  
  
• A qualified legal adviser
  
  
• The Public Services Commission (for workers appointed by the PSC or the Council of Ministers)
  
  
• A prescribed person
  
  
• A person or body included in the list published by the Department for Enterprise under the Public Interest Disclosure (Prescribed Persons) Order 2025
  
  

General routes

There are two circumstances in which a disclosure may be made without specifying a particular recipient:

• Where there has been an exceptionally serious failure, and the worker reasonably believes that the information disclosed or any allegation contained in it is substantially true, does not act for personal gain, and it is reasonable in all the circumstances for the disclosure to be made to that person; or
  
  
• In other cases, where the worker reasonably believes that the information and any allegation contained in it are substantially true, does not act for personal gain, and one or more of the following conditions are met
  
  
  • At the time the disclosure was made, the worker reasonably believed that they would be subjected to a detriment by their employer if the disclosure were made to the employer or a prescribed person
    
    
  • In the absence of an appropriate prescribed person, the worker reasonably believed that disclosure to the employer would result in the destruction or concealment of information relating to the wrongdoing; or
    
    
  • The worker had previously disclosed substantially the same information to their employer or to a prescribed person

In all cases, it must be reasonable for the worker to make the disclosure.

The Employment and Equality Tribunal will determine whether the worker acted reasonably in all the circumstances. In doing so, it will take into account factors including:

• The identity of the person to whom the disclosure was made (for example, disclosure to a professional body responsible for standards and conduct in a particular field, such as accountancy or medicine, may be more likely to be considered reasonable than disclosure to the media)
  
  
• The seriousness of the relevant failure
  
  
• Whether the failure is continuing or is likely to occur again
  
  
• Whether the disclosure breaches the employer’s duty of confidentiality to others (for example, where confidential client information is disclosed)
  
  
• What action has been taken, or might reasonably have been expected to be taken, following any previous disclosure to the employer or a prescribed person; and
  
  
• Whether the worker complied with any internal procedures approved by the employer when making an earlier disclosure
  
  

The 'Link'

The final element in relying on a protected disclosure before the Employment and Equality Tribunal is often the most difficult to establish. A worker must show that because they made a protected disclosure, they suffered a detriment, or, in the case of an employee, were dismissed/suffered a detriment as a result. This is known in legal terms as causation.

The type of complaint that may be brought to the Tribunal depends on whether the complainant is a worker or an employee. A worker may bring a complaint that they suffered a detriment as a result of whistleblowing, whereas only employees can bring a complaint of unfair dismissal on this basis (although employees may also claim detriment where appropriate).

This area of employment law is highly technical. We would therefore always recommend that any employer, worker or employee contacts us for further guidance.

A detailed guide is also available from the Department for Enterprise, which can be found in our resources below.