Article by Professor David Lewis

1. DISTINGUISHING PASSIVE WHISTLEBLOWING FROM DISCLOSURES OF INFORMATION: SOME TERMINOLOGICAL CONSIDERATIONS

Active whistleblowing occurs when a person discloses information about alleged wrongdoing and has been conceptually described by Hirschman1 as a form of voice. In the UK, workers who make a qualifying disclosure to an appropriate recipient should be protected from detriment by Part IVA of the Employment Rights Act 1996 (henceforward ERA 1996). 2 

Passive whistleblowing commonly refers to the situation where an individual resists wrongdoing through non-compliance with an instruction to engage in it. I believe those who silently object to wrongdoing can be described as resisters (Foxley) 3 or guerillas (O’Leary) 4 but cannot be regarded as whistleblowers at all. Indeed, failing to disclose wrongdoing can have serious implications. In addition to allegations of moral complicity, those who have a contractual, professional or statutory duty to report misconduct can face serious disciplinary or legal sanctions for not doing so.5 It should also be noted that a threat to whistleblow is not passive but constitutes action that does not by itself attract legal protection. By way of contrast, an attempt to blow the whistle that has been blocked can be regarded as active whistleblowing. Leaking refers to the situation where a person gives confidential or unpublished information to somebody else. This may be damaging to an organization but such disclosures may well be in the public interest. Leaking is a symptom that existing arrangements for authorized disclosure are inadequate. Indeed, it can be argued that, if anonymous whistleblowers in the UK remain unprotected and any statutory duty of candour imposed on individuals is not reinforced by legal and other support for those who fulfil it, leaking information will remain an attractive option. 6

1 Hirschman AO: Exit, voice and loyalty. 1970. Harvard University Press, Cambridge, Mass

2 Section43B Disclosures qualifying for protection.

(1) In this Part a “ qualifying disclosure ” means any disclosure of information which, in the reasonable belief of the worker making the disclosure,is made in the public interest and tends to show one or more of the following—

(a ) that a criminal offence has been committed, is being committed or is likely to be committed,

(b) that a person has failed, is failing or is likely to fail to comply with any legal obligation to which he is subject,

(c) that a miscarriage of justice has occurred, is occurring or is likely to occur,

(d) that the health or safety of any individual has been, is being or is likely to be endangered,

(da) that sexual harassment has occurred, is occurring or is likely to occur,]

(e) that the environment has been, is being or is likely to be damaged, or

(f) that information tending to show any matter falling within any one of the preceding paragraphs has been, is being or is likely to be deliberately concealed.

2.LEGAL IMPLICATIONS OF PASSIVE WHISTLEBLOWING

Action for breach of contract: An example of passive whistleblowing would be where a worker is required to fraudulently alter records and refuses to do so on ethical grounds. If they suffer a detriment short of dismissal as a result, for example, a deduction from wages or redeployment, they could claim damages for breach of contract. They would contend that they were ready and willing to perform their lawful contractual obligations but were denied the opportunity to do so by an unreasonable/illegal management instruction. To be successful the burden of proof would be on the claimant to prove a direct causal link between their refusal and the retaliatory action. This may be difficult if there is no documentary evidence about the circumstances of the refusal. Indeed, one of the practical advantages of active reporting is that it should create a paper or electronic trail of evidence.

Statutory rights

Part IVA ERA 1996 protects workers who make a disclosure of information about alleged wrongdoing and simply refusing an instruction will not meet this statutory requirement. However, if a worker expressly states their reasons for refusal this could amount to a qualifying disclosure. In addition to remedies for detriments short of dismissal, where the burden is on the employer to show that the action against the worker was not taken by way of reprisal,7 employees (but not workers 8) can complain of unfair dismissal. Indeed, if an individual feels forced to resign as a result of pressure to commit wrongdoing this could amount to constructive dismissal. When termination of employment contrary to Part IVA ERA 1996 is alleged the employee has to satisfy an employment tribunal that the making of a protected disclosure was the reason (or principal reason) for dismissal .If successful, unlimited compensation is available which can include recognition of hurt feelings. 

By way of contrast, those who cannot rely on the protected disclosure provisions could use the general statutory right not to be unfairly dismissed. This is less attractive as under Part X ERA 1996 employees need to have a qualifying period of service (reducing from 2 years to 6 months in January 2027) and compensation is currently capped at the lower of 52 weeks’ gross pay or £123,543. On the plus side, if an employee is sacked for refusing to engage in wrongdoing the employer cannot rely on misconduct as a fair reason for dismissal. However, there will be situations where the employer claims that orders given may have been ethically dubious, but were not unlawful. Similarly, it might be alleged that the employee had a legal duty to report wrongdoing but failed to do so. If the tribunal accepts that the employer’s conduct constituted a fair reason for dismissal it will then have to consider whether or not it was reasonable to dismiss in all the circumstances.9 There are many factors to be considered at this stage, including consultation, warnings, hearings and appeals.10

3 Foxley, I: The Reproduction of Silence in a Major Corruption Scandal: Why People Do Not Speak Up.Springer Nature Switzerland .2028.

4 O’Leary,R: The Ethics of Dissent: Managing Guerrilla Government. Third Edition.CQ Press. 2020

5 Many health workers have professional obligations to report concerns. Employees generally have statutory duties to report safety failures, suspicions about terrorist activities etc and staff engaged in financial services must report alleged money laundering. 6 Regulation 20 of the Health and Social Care Act 2008 (Regulated Activities) Regulations 2014 tatS.I No. 2936 places a statutory duy of candour on all health and adult social care providers registered with the Care Quality Commission in England. In addition, individual health staff are bound by strict professional duties of candour. Under the Public Office (Accountability) Bill 2025 , individual public servants could face criminal prosecution for failing to comply with a new statutory duty of candour.

7 Section 48(2) ERA 1996

8 Workers and employees are defined in Sections 43K and 230 ERA 1996

9 Section 98(4) ERA 1996

10 See ACAS Code of Practice Code of Practice on Disciplinary and Grievance Procedures

3. CONCLUSION

As indicated above, silently observing wrongdoing does not amount to whistleblowing and could cause problems where there is a contractual, professional or statutory duty to report concerns. However, active whistleblowing can also have serious repercussions for those who engage in it. If the UK really wants to encourage disclosures of information in the public interest it should offer observers of wrongdoing both support and protection. This might include the facility to report anonymously. However, as Parrhesia and others have argued, there should be a statutory duty on employers to: maintain whistleblowing procedures that accord with good practice; investigate and deal with issues that are raised thereunder and refrain from retaliation.