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Checklist for whistleblowing - Public Interest Disclosure Claims

  1. Was1 the complainant a “worker”2? [43K]3
    If no, no claim. End here.
    If yes, continue.
  2. Was the worker subjected to any detriment and/or dismissed?4 [47B; 103A]
    If no, no claim. End here.
    If yes, continue.
  3. Did the worker make a disclosure of information5? [43B]
    If no, go to paragraph 24.
    If yes, continue.
    Each disclosure to each person should be considered separately. For example, if a particular matter was raised by the worker both with his employer and with a regulator, this is to be treated as two distinct disclosures.
    In relation to each disclosure: -
  4. In the reasonable belief of the worker, did the information tend to show6 a “relevant failure”7? [43B]
    If no, go to paragraph 23.
    If yes, continue.
  5. Was the disclosure made in good faith?8
    If yes, go to paragraph 7.
    If no, continue.
  6. Was the disclosure made to the employee’s legal adviser? [43D]
    If yes, go to paragraph 20.
    If no, go to paragraph 21.
  7. Was the disclosure made in any of the following ways:
    (a) to the employer [43C(1)(a)];
    (b) to some “other responsible person” [43C(1)(b)];
    (c) in accordance with employer’s own ‘whistleblowing’ procedure [43C(2)];
    (d) (if the employer is a public body9) to the responsible Minister [43E]?
    If yes, go to paragraph 20.
    If no, continue.
  8. Did the worker reasonably believe that the information disclosed and any allegation contained in it was substantially true10? [43F(1)(b)(ii); 43G(1)(b); 43H(1)(b)]
    If no, go to paragraph 21.
    If yes, continue.
  9. Was the disclosure made to a “prescribed person”11 [43F].
    If no, go to paragraph 11.
    If yes, continue.
  10. Did the worker reasonably believe that the relevant failure was within the prescribed person’s area of responsibility? [43F(1)(b)(i)]
    If yes, go to paragraph 20.
    If no, go to paragraph 21.
  11. Was the disclosure made for purposes of personal gain12? [43G(1)(c); 43H(1)(c)]
    If yes, go to paragraph 21.
    If no, continue.
  12. Was it reasonable in all the circumstances13 for the worker to make the disclosure? [43G(1)(e); 43H(1)(e)]
    If no, go to paragraph 21.
    If yes, continue.
  13. Was the relevant failure of an exceptionally serious nature14? [43H(1)(d)]
    If yes, go to paragraph 20.
    If no, continue.
  14. Had the worker previously made the disclosure to his/her employer? [43G(2)(c)(i)]
    If yes, go to paragraph 20.
    If no, continue.
  15. Was there a relevant prescribed person? [43G(2)(b)]
    If no, go to paragraph 17.
    If yes continue.
  16. Had the worker previously made the disclosure to the relevant prescribed person [43G(2)(c)(ii)]
    If yes, go to paragraph 18.
    If no, go to paragraph 19.
  17. Did the worker reasonably believe it was likely that evidence of the relevant failure would be destroyed or concealed if s/he had made the disclosure to his/her employer? [43G(2)(c)(ii)/43F(2)(b)]
    If no, go to paragraph 19.
    If yes, go to paragraph 20.
  18. Did the worker reasonably believe that the relevant failure was within the prescribed person’s area of responsibility? [43F(b)(i)]
    If yes, go to paragraph 20.
    If no, go to paragraph 21.
  19. Did the worker reasonably believe that s/he would be subjected to detriment if s/he had made the disclosure to his/her employer or, if applicable, to the relevant prescribed person? [43G(2)(a)]
    If no, go to paragraph 21.
    If yes, continue.
  20. Was the worker subjected to detriment on the ground that15, or, in an unfair dismissal case, was the reason or principal reason for dismissal that16, s/he had made the particular disclosure? [47B; 103A]
    If yes, there is a PIDA claim in relation to that particular disclosure to that particular person. Go to 22.
    If no, continue.
  21. There is no PIDA claim in relation to that particular disclosure to that particular person.
    Continue.
  22. Did the worker make the disclosure to anyone else?
    If yes, go to paragraph 4 and follow the checklist in relation to that disclosure to someone else.
    If no, continue.
  23. Did the worker make another disclosure?
    If yes, go to paragraph 4 and follow the checklist in relation to that other disclosure.
    If no, continue.
    No (further) PIDA claim. Consider: ordinary unfair dismissal; health and safety [44; 100].

1. Claims may be brought in respect of post-employment detrimental treatment: Woodward v Abbey National plc [2006] IRLR 677.
2. Words in double quotes are terms defined in the Employment Rights Act 1996 (“ERA”).
3. References in square brackets are to sections of the ERA.
4. If the detriment is dismissal then if the complainant is an employee there is no detriment claim, simply an unfair dismissal claim under section 103A. If the complainant is a worker but is not an employee then a detriment claim under section 47B may be made in relation to a dismissal.
5. Words in italics are terms used in the ERA that are not there defined. For the meaning of “disclosure” see Bolton School v Evans [2007] IRLR 140 and section 43L(3). For the meaning of “information” see Cavendish Munro Professional Risk Management Limited v Geduld [2010] IRLR 38.
6. For the meaning of “reasonable belief” and “tends to show” see Babula v Waltham Forest College [2007] IRLR 346.
7. Sections 43B(5) and 43L(1) define “relevant failure” as each of the six things listed in sections 43B(1)(a) to (f).
8. See Street v Derbyshire Unemployed Workers’ Centre [2004] IRLR 687 for the meaning of “in good faith”.
9. ‘Public body’ is a shorthand. ERA section 43E applies only if the employer is an individual appointed by a Minister under an Act of Parliament or a body whose members are so appointed.
10. See Korashi v Abertawe Bro Morgannwg University Local Health Board [2012] IRLR 4 for the meaning of this phrase.
11. See the Public Interest Disclosure (Prescribed Persons) Order 1999, SI 1999/1549, as amended.
12. See section 43L(2) in relation to “for the purposes of personal gain”
13. Regard is to be had, in particular: where the relevant failure is of an exceptionally serious nature, to the identity of the person to whom disclosure is made [43H(2)]; in other cases, to the matters set out in ERA s. 43G(3).
14. To the best of the writer’s knowledge, there have been no appellate decisions on the meaning of this phrase.
15. See section 48(2) and Fecitt v NHS Manchester [2012] IRLR 64.
16. For the burden of proof in an unfair dismissal case, see Kuzel v Roche [2008] IRLR 530.