Whistleblowing has long been employed as an important tool for uncovering wrongdoing and ensuring accountability, particularly in companies or organisations where environmental concerns may arise, such as pollution, environmental hazards or regulatory breaches.
However, despite increasing public awareness and activism in relation to climate change, water pollution and greenwashing, which is when an organisation misrepresents how environmentally sustainable their products or business operations are, UK environmental regulators have only received a surprisingly small number of environmental whistleblowing disclosures. As this article explains, that may now change.
This article explains the protection for whistleblowers under the Employment Rights Act and points out a new reporting portal and toolkit launched for environmental whistleblowing. We also highlight employment tribunal cases relating to environmental whistleblowing and advise on the steps that businesses can take to protect themselves.
The Public Interest Disclosure Act 1998 amended the Employment Rights Act 1996, providing protection for workers reporting malpractices by their employers or third parties against any form of victimisation or dismissal. Then in 2013, the Enterprise and Regulatory Reform Act further amended the 1996 Act and introduced liability for co-workers and the resulting vicarious liability for employers. As a result, Employment Rights Act provides a number of ways in which a whistleblowing claim may be founded.
There are two levels of protection for whistleblowers under the Employment Rights Act:
Whether a whistleblower qualifies for protection depends on them satisfying the following tests:
There is no financial cap on compensation in whistleblowing claims and no requirement for a minimum period of service. These factors often mean that, in practice, workers and employees tactically prefer to bring a whistleblowing claim rather than another type of claim, and the link between a particular complaint and a protected disclosure may sometimes be tenuous.
The Environment Agency is responsible for protecting and improving the environment and promoting sustainable development in England, these functions are performed by Natural Resources Wales in Wales. Natural Resources Wales has its own whistleblowing reporting procedures, whereas the Environment Agency, recognising the role of whistleblowing in the fight against environmental damage, recently launched a whistleblowing portal. Any environmental whistleblowing report must be in the public interest and involve serious environmental damage regarding a company.
This portal is available to employees who work for a:
Under the Prescribed Persons (Reports on Disclosures of Information) Regulations 2017, the Environment Agency must act on any third-party disclosures made to us about environmental malpractice. These regulations also require the agency to produce and publish an annual report on whistleblowing disclosures they receive.
The agency reports that during the period of 1 April 2022 to 31 March 2023, it received 15 disclosures which were identified as potentially whistleblowing matters on initial assessment. Two of those, on further assessment, were identified as being from employees reporting matters in accordance with their employers’ permit conditions. They were therefore not qualifying disclosures and were dealt with as incident reports.
Of the 13 remaining reports, nine were with regards to alleged breaches of waste related permit conditions:
Protect, a whistleblowing charity, has published a comprehensive toolkit to encourage workers to raise environmental concerns. Protect collaborated with trade unions, non-governmental organisations and regulators, such as the Prudential Regulation Authority (part of the Bank of England), to publish the toolkit.
The toolkit includes information on what may constitute an environmental concern, practical guidance on how and where to raise environmental concerns and information on available legal rights when raising environmental concerns.
To date, there have been very few employment tribunal cases where it was argued that the concern raised fell within the ‘environmental damage’ category under section 43B(1)(e) of the Employment Rights Act. In other words, it was the worker’s reasonable belief that the environment has been, is being or is likely to be damaged, or information tending to show this has been, is being or is likely to be deliberately concealed.
Two examples are:
The employment tribunal is keen to make an example of individuals who subject co-workers to a detriment and find in favour of a claimant where the detriment results from a protected disclosure. Compensation in detriment claims is not limited and is based on what the employment tribunal considers to be 'just and equitable in all the circumstances', and can also include compensation for injury to feelings as well as unlimited loss of earnings.
Employers should ensure that senior managers and other appropriate individuals have been adequately trained on whistleblowing in the workplace, and that they are aware of the rights of individuals who make a protected disclosure. This will hopefully avoid both the employer and the individual being faced with potential whistleblowing claims.
When making a decision to dismiss, care should be taken to make clear the reason for the dismissal, demonstrating that it is in no way connected with any potential protected disclosure.
The Companies Act 2006 places an obligation on company directors to act in good faith to promote the success of the company and in doing so to ‘have regard’ for the impact of the company’s operations on the community and environment, as well as the likely long-term consequences of any decision.
The act also requires directors to exercise reasonable care, skill and diligence in respect of their duties. Consideration should be given as to whether director and officers liability insurance is required, and existing policies should be reviewed to ensure that liability for detriments in these circumstances is covered.
For more information or advice, please contact the business risk and regulation team.
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