Understanding Protected Disclosure Requirements

As organisations continue to navigate the evolving landscape of workplace compliance, recent and proposed legislative changes have brought protected disclosures into renewed focus. The new Employment Rights Bill specifically designates sexual harassment as a protected disclosure, which combined with expanded protections under Section 40A of the Equality Act and the FCA's emphasis on non-financial misconduct, creates a timely opportunity to review existing whistleblowing programs. This guidance provides a detailed overview of protected disclosures in the UK and offers practical approaches to managing compliance and reducing risks within your organisation.

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Qualifying Protected Disclosures:

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Organisations must identify and manage protected disclosures across their operations. A protected disclosure relates to workplace misconduct or matters affecting public interest. Protected disclosures cover serious concerns including:

• Criminal offences
• Failures to comply with legal obligations
• Miscarriages of justice
• Health and safety risks
• Environmental damage
• Cover-ups of wrongdoing
• Sexual harassment (Upcoming)

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Assessment Framework:

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The management of potential protected disclosures requires careful assessment of each report. While not every concern or complaint will qualify for protection, organisations must understand the three critical elements defined under the Employment Rights Act (ERA) that determine protected status.

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First, the disclosure must meet the ERA's specific definition of a qualifying disclosure, relating directly to one of the six types of wrong doing outlined above. Second, the disclosure must demonstrate clear public interest implications that extend beyond personal grievances. Finally, the reporter must follow appropriate channels by making their disclosure to authorised persons or bodies within the organisation's reporting structure.

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Protection Coverage:

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Organisations must implement protection measures from the moment employment begins, extending even after employment ends. This obligation holds particular importance when managing disclosures about former employers. Your protection framework must encompass a broad range of individuals within your organisation, which will vary depending on the type of business you operate. This may include staff such as NHS practitioners, student nurses and midwives, police personnel, and various office holders.

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Qualification Requirements:

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The foundation of a protected disclosure rests on reasonable belief in the validity of the reported information. Workers must demonstrate reasonable grounds for believing the information indicates past, present, or likely future wrongdoing. This belief must be honest given the circumstances at the time of disclosure.

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Legal Framework:

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The Employment Rights Act 1996 establishes two fundamental protections that organisations must implement. The first addresses unfair dismissal, where sections 103A and 105(6A) automatically classify dismissals or redundancy selections based on protected disclosures as unfair. This protection extends to cases of constructive dismissal, where an employee resigns due to the employer's conduct following a disclosure.

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The second protection, detailed in Section 47B, focuses on preventing detrimental treatment. Organisations must actively prevent any form of retaliation, including demotions, pay reductions, or career impediments. This protection extends to adverse treatment from colleagues, and organisations may face liability unless they can demonstrate reasonable preventative measures were taken.

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Non-Financial Misconduct in Financial Services:

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The Financial Conduct Authority (FCA) has also made changes to emphasise that non-financial misconduct carries equal weight to financial misconduct when determining fitness and propriety. This stance recognises that behaviours creating an unhealthy workplace culture, including sexual harassment, bullying and discrimination, can signal broader integrity issues that threaten both market stability and consumer protection.

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These regulatory expectations, alongside the expansion of protected disclosures, encourage organisations to adopt a more strategic approach to misconduct reporting. With these recent changes in mind, organisations should develop unified strategies and processes that improve management of all forms of workplace misconduct.

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Practical Implementation:

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Effective protected disclosure management requires organisations to establish clear processes that protect both the reporter and the organisation. These processes should enable confidential reporting, ensure proper investigation procedures, and maintain secure documentation throughout the report lifecycle. To achieve this, organisations need to implement several key components:

• Policy Framework
• Reporting Mechanisms
• Education and Training
• Prevention and Culture
• Documentation Requirements

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The Confide Whistleblowing Platform integrates these components into a comprehensive solution, providing organisations with the tools and framework needed to meet their obligations efficiently and securely. Our platform helps foster a culture of transparency and accountability, ensuring both reporters and organisations are protected throughout the disclosure process.