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The Manchester Evening News recently reported that a surgeon at Tameside General Hospital, Mr Pena, who turned ‘whistle blower’ to reveal that patients’ lives were being put at risk by staff shortages, is to face disciplinary action. Hospital bosses have not denied the problems that he raised, but they say that he broke Tameside NHS Trust’s ‘whistle blowing’ policy by talking to the MEN. We assess the current state of the law in this area.

Employees need to be very careful when they are considering ‘whistle blowing’ to ensure that they are going to be protected by the relevant legislation. Equally, whilst an employer may feel betrayed or aggravated by an employee who has ‘whistle blown’, they must also be careful to bear in mind the protection afforded to employees.

‘Whistle blowing’ (in specified circumstances) is protected by the Public Interest Disclosure Act 1998.

In brief if an employee has a reasonable belief that a certain type of action has occurred, for example a criminal offence or endangerment to the health and safety of an individual, he can make a “protected disclosure”. Generally speaking, an employee must usually first make the disclosure in good faith to either his employer or to a relevant “Prescribed Person”, as detailed by the Secretary of State – for example the Environment Agency, the Financial Services Authority or the Health and Safety Executive. The press are not a “Prescribed Person”.

If an employee wants to make the disclosure to the press, then he has to show that certain criteria apply before he will be protected under the legislation. For example, the employee must not make the disclosure for personal gain and a Tribunal would consider (amongst other things) the seriousness of the relevant failure, whether the employee previously disclosed the information to his employer and whether the employee complied with any procedure of his employer (including those set out in a ‘whistle blowing’ policy). If the disclosed information is of an exceptionally serious nature, then there are less hurdles to cross before it will be reasonable to go to the press.

If a ‘whistle blowing’ employee is protected under the Act, then they must not be subjected to a detriment by their employer nor be dismissed because they made a protected disclosure. There is no qualifying period of employment before a ‘whistle blowing’ employee can bring an unfair dismissal claim and there is no limit on the amount of compensatory award that can be awarded.

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