What is Qualifying Disclosure?
One of the requirements for an employee or a worker to be protected by the whistleblowing provisions of the Employment Rights Act 1996 (“ERA 1996”) is that he or she must make a ‘qualifying disclosure’. A disclosure is a “qualifying disclosure” if the following is satisfied:
- There was a disclosure of information;
- The worker/employee must believe that the disclosure was made in the public interest;
- If the worker/employee holds such belief, it must be reasonably held;
- The worker/employee must believe that the disclosure tends to show one or more of the matters listed in section 43B(1)(a)-(f) (e.g., that a criminal offence has been committed; that a person is failing or is likely to fail to comply with any legal obligation to which he is subject); and
- Such belief must be reasonably held.
The five conditions above must be satisfied in order for there to be a qualifying disclosure.
If a qualifying disclosure is made to a specified body or person, it is said to be a protected disclosure. Once a protected disclosure is made, the employee or worker is protected against detriments on the grounds of having made a qualifying disclosure. Employees are also protected against dismissal on the ground of making a protected disclosure and can bring an automatic unfair dismissal claim under section 103A ERA 1996 even if he or she has served less than two years’ of continuous service.
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