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Protected disclosures to the ICO – Whistleblowing

What is whistleblowing?

‘Whistleblowing’ is when a worker passes on information about wrongdoing they have witnessed or experienced usually, but not always, at work.

If you are concerned that because of disclosing information, you may be penalised by your employer or dismissed from your job, the whistleblowing provisions may protect you.

The wrongdoing you disclose must be in the public interest. This means it must affect others, for example the general public.

You can raise your complaint at any time about an incident that happened in the past, is happening now, or you believe will happen in the near future.

Who is protected by law?

The whistleblowing provisions protect any ‘worker’ who makes a ‘protected disclosure’ of information, from being dismissed or penalised by their employer because of the disclosure.

‘Worker’ has a broad definition and applies to anyone who works (or worked) under a contract in the UK. It includes:

  • Employees;
  • home workers;
  • casual workers;
  • temporary or agency workers;
  • people who work via personal service companies; and
  • people involved in training programmes or work experience.

It doesn’t generally apply to the self-employed or to Crown servants involved in national security.

You should get independent advice if you are not sure if you are protected. Protect are an independent whistleblowing charity who can offer confidential advice about whistleblowing. Please see further information on their website or by contacting their free helpline on 020 3117 2520.

What complaints are considered whistleblowing?

For a disclosure to be protected, the complaint must fit set criteria. The criteria most relevant to our work are where the worker reasonably believes an activity involves:

  • a criminal offence; or
  • a breach of a legal obligation.

A disclosure will not qualify if a worker commits an offence by making it, or if the information is subject to legal professional privilege (or a claim to confidentiality between a client and professional legal adviser in Scotland).

If you report your complaints to the media, in most cases you will lose the protection of the whistleblowing provisions.

What complaints are not suitable for whistleblowing?

Complaints about the handling of your own personal data by your employer would be unlikely to form a whistleblowing disclosure, unless it presented wider issues in the public interest. For personal information complaints you should follow our personal information complaint process. Your complaint will be dealt with under our routine case handling process and you will receive an individual outcome.

In these cases, the whistleblowing provisions will not apply. We will usually disclose your name and the details of your complaint to your employer (although we should still be able to withhold non-essential information if you request it). We have a range of powers available to us and in some cases, we can help your employer take action to put things right for you.

Personal grievances (for example bullying, harassment or discrimination) are not covered by whistleblowing law, unless your particular case is in the public interest.

These should be reported under your employer’s own grievance policy.

You may also wish to seek advice from the Advisory, Conciliation and Arbitration Service about a workplace dispute.

Making your protected disclosure

Any information disclosed to us must be information you reasonably believe to be true and you must act in good faith.

We will treat the information you provide as confidential and won’t disclose it without lawful authority. However, to look into a matter properly, we will usually need to disclose some information to the organisation concerned. We can discuss this with you, but you should clearly indicate any information that you don’t want us to share from the outset.

You can contact us anonymously if you prefer but we are more likely to be able to investigate potential wrongdoing where we are confident that the party making the disclosure is in a position to make an informed complaint. It will also mean we are better able to feedback information about any action we have taken, if we are in a position to do so.

If we believe we have an opportunity to improve your employer’s information rights practices, there is a range of regulatory action we can take, from recommending changes to policies and procedures to taking formal enforcement action. For more information about our regulatory powers, please see the regulatory action policies on the policies and procedures section of our website.

We will always acknowledge receipt of your protected disclosure. However, we will be limited in what further information we can provide about any action we take as a result of your disclosure. We have a duty of confidence to the organisations we regulate and we are legally prevented from sharing much of the information we hold about them.

We publish information about the action we take as a result of disclosures made by whistleblowers in a yearly report. This won’t, however, contain any information which will identify individual whistleblowers or their employers (including ex-employers).

Next steps

If you believe that your complaints fall within the whistleblowing provisions, please call our helpline on 0303 123 1113, selecting the option for whistleblowing complaints. Please make clear to the person you speak to that you consider yourself to be making a protected disclosure under the whistleblowing provisions. Our staff will be able to guide you to an online reporting tool where you can submit your protected disclosure.

Alternatively, you can contact us in writing. We will direct your correspondence to an officer that is familiar with the whistleblowing provisions and our related case handling procedures. You should make clear in any correspondence that you consider yourself to be making a protected disclosure under the whistleblowing provisions.

All of our contact details are on the contact us section of our website.

Further information

You can find further information about whistleblowing on the Government website including information about what to do if you are treated unfairly after making a protected disclosure.

You can also contact the independent whistleblowing charity, Protect, for further confidential advice about whistleblowing. Please see further information on their website or by contacting their free helpline on 020 3117 2520.