Intended to provide a route for workers to make disclosures, put in place protections for those who do, and to support wider cultural change to recognise the benefits of whistleblowing, the Public Interest Disclosure Act 1998 has been criticised in recent years for failing to meet those objectives. A survey of 2,000 workers carried out in October 2024 found that 51% of them would not feel safe disclosing illegal activities by their company. The main reason for this was fear of dismissal - exactly what the current regime was set up to prevent.
The current regime
The current regime protects employees, workers and some other specified individuals from dismissal or detrimental treatment in consequence of making a "protected disclosure". For those that are protected, it is a day 1 right and, if a successful tribunal claim is made, compensation is unlimited.
To be protected, a whistleblower must have made a qualifying disclosure. This requires disclosing information that the whistleblower reasonably believes is in the public interest and tends to show that one of the following has, is, or is likely to occur: -
- A criminal offence.
- A failure to comply with a legal obligation.
- A miscarriage of justice.
- A breach of health and safety.
- Damage to the environment.
- Deliberate concealment of information relating to any of the above.
To be protected, the qualifying disclosure must be made to one of the categories of people set out in the legislation. The categories are the employer, the person responsible for the failure, legal advisers, Government Ministers, or other prescribed persons. Disclosures made to anyone else (such as the media) will only be covered in exceptional circumstances and must meet more rigorous conditions.
Reform
The current whistleblowing legislation has been criticised for (1) being too restrictive in relation to who is protected, (2) failing to set legal standards for employers and (3) the complexity of making a claim before an employment tribunal. It is argued that the current regime, which has been in place since 1999, is long overdue for reform. During a debate in the House of Commons there was cross-party criticism of the regime, including in relation to (1) the significant financial and reputational damage whistleblowers often suffer, and (2) the suggestion that tribunals often focus too much on procedural issues.
In 2023, the then Conservative UK Government launched a review seeking evidence on the effectiveness of the current regime. This included looking at who was protected, the availability of information and guidance on whistleblowing and how employers and other prescribed persons responded to disclosures being made. The review followed data published by the whistleblowing advice service 'Protect', which showed that one in four Covid-19 whistleblowers who contacted the Protect advice line was dismissed by their employer.
Following the change of government in July 2024, the status of the review was not clear. Although the Labour Party manifesto promised strengthened protections for whistleblowers in the workplace, nothing was specified initially beyond the commitment to expand whistleblowing protection to include reports of sexual harassment, a commitment that is being met via the Employment Rights Bill.
Subsequently, during a debate on whistleblower protections that took place in October 2024, the Labour Government indicated it was considering the role, remit, and cost of a potential new independent office of the whistleblower to give whistleblowers "somewhere they can go and have their complaints taken seriously". In a further debate later that month it was suggested that the government was considering how and when to release information obtained during the 2023 review.
Recent cases
Some of the most highly anticipated cases of 2025 relate to whistleblowing claims.
Sullivan v Isle of Wight Council concerns whether whistleblowing legislation should be interpreted to allow an external job applicant to bring a whistleblowing claim. The claimant had unsuccessfully applied for a role with the council. A short time afterwards, she made an unrelated complaint to the council about alleged financial misconduct by one of her interviewers. The complaint was rejected, and she was denied an appeal. The claimant alleged the denial of the appeal amounted to a detriment because of her alleged protected disclosure.
An employment tribunal dismissed her claim because, as a job applicant and not a worker, she did not have the necessary status to bring a claim. The Employment Appeal Tribunal ("EAT") dismissed an appeal, but a further appeal to the Court of Appeal was due to be heard in February. The EAT took the view that any amendment to whistleblowing legislation that would extend its effect to job applicants would call for "legislative deliberation". While the limits on who is protected under the legislation is one of the main criticisms of the current regime, it does seem an issue that is one for Parliament rather than the courts - but it remains to be seen what the Court of Appeal decides.
The case of SPI Spirits (UK) Ltd v Zabelin is also due to be heard by the Court of Appeal and concerns a £1.6 million compensation award. The award was made following a successful whistleblowing claim. SPI appealed the compensation award on the basis that there was a contractual agreement between the parties that capped any damages at £270,000 which they argued the Employment Tribunal had not properly considered. This was based on a clause in the claimant's employment contract that stated that if SPI terminated his contract of employment after twelve months' service, he would be entitled to compensation as set out in a separate confidentiality and non-compete agreement which provided for a payment of £270,000.
The EAT did not agree with SPI's interpretation of the contractual provision, stating that it did no more than provide for a guaranteed contractual payment to the claimant on termination after twelve months' service. Seeking to limit the Employment Tribunal award in this way would also be void under section 203 of the Employment Rights Act 1996, which deals with contracting out of statutory employment rights. The EAT also dismissed SPI's argument that the Acas Code of Practice on Disciplinary and Grievance Procedures does not apply to dismissals in which the sole reason for dismissal was a protected disclosure. The EAT also concluded that the Employment Tribunal had been correct to apply an uplift to the compensation as against both the employer and a co-worker (the majority shareholder in the company who made the decision to dismiss). The appeal against this judgment is due to come before the Court of Appeal in April.
Conclusion
Reform of the current whistleblowing regime seems to be something that the main political parties agree is needed. However, with the Parliamentary Under-Secretary of State for Trade and Business, Justin Madders, stating that the shortcomings in current legislation was something the government wanted to look at "if we get around to a review of the legislation", it may be some time before reform is forthcoming.
In the meantime, employers should continue to take any complaints they receive from workers seriously, consider whether they might amount to protected disclosures and deal with them appropriately.
