Employers need to be mindful about the action they take against whistleblowers, as there is no upper limit on the amount of compensation that can be awarded in unfair dismissal or detriment claims under whistleblowing legislation, and such claims can occasionally be of very high value. Significant adverse publicity could also result from such claims should they arise.
HS2 cases puts spotlight on what the law says about whistleblowing
The new high-speed railway from London to the West Midlands, Manchester and Leeds, known as High Speed 2 (HS2), has been widely discussed since it was originally proposed by the Labour government in 2009.
In August 2019, the government launched a review of the project and is currently considering whether it should continue and, if so, how. Although the project would create thousands of jobs, HS2 has received significant opposition from residents and MPs as the route passes through their constituencies, and from environmental organisations because of worries about increased carbon emissions. It has also received opposition from its own workers, including concerns raised by a former executive.
HS2 Ltd, the organisation responsible for the project, has now issued a ‘letter before action’ to workers who raised concerns, stating that it intends to take legal action against them for disclosing confidential information. HS2 says this action was not linked to the review by the government but instead related to confidential information that workers obtained during their employment, which they are prohibited to use, remove or disclose because of the provisions of their contracts of employment.
Confidential information & whistleblowing
Workers who obtain confidential information during their employment are generally prohibited from using or disclosing that information following the termination of their employment. However, the Employment Rights Act 1996 renders contractual terms such as this void if the terms seek to preclude staff from making a protected disclosure. Where disclosure of confidential information amounts to a protected disclosure, there can be no breach of any express or implied contractual duties.
However, the Public Interest Disclosure Act 1998 and Employment Rights Act provide protection for workers who report malpractice by their employers or third parties. A person who makes a ‘protected disclosure’ (one made in the public interest that relates to a criminal offence, breach of legal obligation, miscarriage of justice, danger to individuals’ health and safety, damage to the environment or evidence of deliberately covering up information) is protected from being victimised or dismissed if this is done as a result of them raising their concerns. Contractual terms are rendered void if they seek to preclude staff from making a protected disclosure – where disclosure of confidential information amounts to a protected disclosure, there can be no breach of any express or implied contractual duties.