Whistleblowing: Right of complaint to an industrial tribunal

An employee may bring a claim for unfair dismissal if they are dismissed for making a protected disclosure. A tribunal/arbitrator will find any such dismissal to be automatically unfair.

An employee or other worker who believes they have been subjected to a detriment for making a protected disclosure can bring a complaint of detrimental treatment.

A worker subjected to a detriment by a co-worker in the course of that co-worker's employment with the employer, on the grounds that the worker made a protected disclosure, may be able to take a case to an Industrial Tribunal against both the co-worker and their employer.

A detriment can be either an act or a deliberate decision not to act by the employer. Whether an employee or other worker has suffered a detriment will be decided by the tribunal/arbitrator.

Examples of detrimental treatment include:

• threats of dismissal
• withholding a pay rise
• discrimination in promotion, transfer, or training opportunities
• failure to confer a benefit on a person who failed to accept an unlawful inducement that would have been conferred on them had they accepted the offer

Workers who are not employees cannot claim unfair dismissal. However, their dismissal could amount to a detriment and therefore they could still bring a detrimental treatment claim.

Remedies

Where a tribunal or arbitrator finds that an employee's complaint of unfair dismissal is justified, they will order either:

• reinstatement/re-employment
• the payment of compensation

Where an employee or other worker complains they have been subjected to a detriment and the tribunal or arbitrator finds the complaint well-founded, they will make a declaration to that effect and may order the payment of compensation.

An industrial tribunal will have the discretion to reduce a compensatory award by up to 25% in the event that it finds the disclosure has not been made in good faith.