Whistleblowing

You may raise a concern on behalf of a member who wishes to remain anonymous, but only if their school or college has a whistleblowing policy that allows you to do so. Where a school/college has such a policy, you and the member will retain protection under whistleblowing legislation.

In such circumstances, you should limit your discussion with the member to the pros and cons of blowing the whistle to ensure they are fully aware of the consequences of doing so. You are encouraged to take the next available opportunity to negotiate a term in the whistleblowing policy allowing staff members to disclose concerns to a union rep or officer. 

The rep’s/officer’s role will then be to inform the employer of the reported issue and ensure it is properly investigated and addressed.

A whistleblower is protected from detriment and/or unfair dismissal only if their disclosures are protected disclosures. These are defined as qualifying disclosures made:

• to an appropriate recipient, and
• in accordance with the different conditions that must be satisfied when a disclosure is made to each type of recipient.

A qualifying disclosure is defined as “any disclosure of information which, in the reasonable belief of the worker making the disclosure is made in the public interest” and tends to show one or more of the following criteria: 

• 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 s/he is 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
• that information tending to show any matter falling within any one of the preceding paragraphs has been, or is likely to be deliberately concealed.

A qualifying disclosure may be made to one of six types of recipient: 

• an employer.
• a legal adviser.
• a Minister of the Crown (in certain circumstances).
• an MP.
• a regulatory body (referred to as a prescribed person).
• a third party (eg a member of the press).

Union reps are not on the list under the current law and members are able to use the union only to obtain legal advice unless the school/college whistleblowing policy provides otherwise.

You should not refer information relating to misconduct or wrongdoing at your school or college to the TRA in the first instance. The TRA is not a ‘prescribed person’ for the purposes of whistleblowing legislation and any disclosure to it will not necessarily be protected. The union can give advice about the proper body to contact if you do not wish to approach your employer. 

For more information about the TRA’s functions see Misconduct and the teaching regulation agency. 

In all cases (except for disclosure to a legal adviser) the minimum requirement for protection is that the disclosure is made in the reasonable belief that it is ‘in the public interest’.

The requirement to make disclosures in good faith still exists, but the absence of good faith no longer excludes a qualifying disclosure from protection. The question of good faith is ultimately a question of fact for an employment tribunal to decide.

A qualifying disclosure made internally to an employer (eg a local authority) or other reasonable person (e.g., a governing body) is protected if the minimum requirement for protection is met, ie if the whistleblower has a reasonable belief that the disclosure is in the public interest.

With the exception of disclosures to legal advisers, a disclosure to an external body or third party imposes additional conditions that must be satisfied before the disclosure is protected: 

• If the disclosure is made to a Minister of the Crown, the whistleblower’s employer must be appointed under an Act of Parliament (or under something similar).
• If the disclosure is made to a prescribed person (e.g., a body such as Ofsted in England or Estyn in Wales), the whistleblower must reasonably believe that the failure is one which is relevant to that prescribed person and that the disclosure is substantially true.
• Other disclosures can be protected if the whistleblower reasonably believes that the disclosure is substantially true; the disclosure is not made for personal gain; it is reasonable to make the disclosure; and one of a number of additional conditions set out in the legislation are met.
• Other disclosures may also be protected if the whistleblower reasonably believes that the disclosure is substantially true; the disclosure is of an exceptionally serious nature; and it is reasonable to make the disclosure to the recipient.

There are several instances when a disclosure will not be protected. A disclosure will not be protected if:

• it is made to a body or person not prescribed by legislation.
• it is made to a prescribed body/person without jurisdiction to investigate the disclosure.
• the pre-conditions applying to disclosure are not met (i.e., public interest, reasonable belief in the truth of the information disclosed etc).
• the whistleblower is not a ‘worker’ within the definition of the law.
• the whistleblower commits an offence by disclosing information.
• the whistleblower makes allegations instead of disclosing information.
• the whistleblower’s disclosure amounts to a grievance.

This is not expressly defined in legislation, but there is plenty of case law to say that the requirement to disclose information means the whistleblower must convey facts rather than mere allegations or grievances. 

Always seek to provide an explanation for the concerns you are disclosing. For example, if your complaint is that your employer is failing in its legal obligation to provide a safe workplace, support your complaint with facts that explain the point you are making.

Any clause in a settlement agreement that attempts to stop a worker making a protected disclosure is void and would not prevent you from doing so. If you have signed a settlement agreement, seek advice from the union before taking steps to blow the whistle.