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What protections do employees have when they raise health and safety concerns? - Automatically unfair whistleblowing dismissal.

14 July 2020

We have put together a series of blogs to discuss the various protections an employee may have when they raise health and safety concerns. It is important for all HR professionals and businesses to understand the protections afforded to employees and the employment law implications of employees raising health and safety concerns so as to limit risk and avoid costly court claims.

Today’s focus is on automatically unfair health whistleblowing dismissal.

  1. Automatically unfair whistleblowing dismissal

An employee will be regarded as automatically unfairly dismissed if the reason or principal reason for the dismissal is that they have made a protected disclosure. The right applies to actual and constructive unfair dismissals.

This right does not require qualifying service and there is no limit on the amount of compensation that can be awarded. Only employees can claim unfair dismissal, but workers can claim in respect of detriments on the ground that they made a protected disclosure.

Claimants can seek interim relief in a whistleblowing unfair dismissal claim.

Whether a whistleblower qualifies for protection depends on satisfying the following tests:

  • Have they made a qualifying disclosure? There are a number of requirements for a qualifying disclosure (section 43B, ERA 1996):
    • Disclosure of information. The worker must make a disclosure of information. Merely gathering evidence or threatening to make a disclosure is not sufficient.
    • Subject matter of disclosure. The information must relate to one of six types of "relevant failure". The relevant failures which are likely to be relevant in this context are criminal offences, breach of any legal obligation (for example, health and safety obligations to provide appropriate PPE and provide a safe system of work), danger to the health and safety of any individual and the deliberate concealment of information relating to one of those matters.
    • Reasonable belief. The worker must have a reasonable belief that the information tends to show one of the relevant failures.
    • In the public interest. Further, the worker must have a reasonable belief that the disclosure is in the public interest.
  • Is it also a protected disclosure? The disclosure must also qualify as a protected disclosure, which broadly depends on:
    • The identity of the person to whom disclosure is made. PIDA encourages disclosure to the worker's employer (internal disclosure) as the primary method of whistleblowing. Disclosure to third parties (external disclosure) may be protected if more stringent conditions are met. Disclosures to a "responsible" third party, or a "prescribed person" are likely to gain protection relatively easily. However, wider disclosures, such as to the police or to the media, will only qualify in very limited cases. The conditions in which wider disclosure can be made are relaxed and modified where the failure is of an exceptionally serious nature.

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