Whistleblowing remains one of the most challenging areas for HR teams to navigate. The legal framework is complex, the risks are high, and recent case law continues to reshape how tribunals approach these claims. To help cut through the noise, here’s a practical overview of the two key whistleblowing claims in UK law – and what recent decisions mean for your organisation.

Two types of Whistleblowing claim

In the UK, whistleblowing can give rise to two distinct legal claims:

  • Detriment under s47B ERA 1996
  • Automatic unfair dismissal under s103A ERA 1996

These claims overlap but are far from identical. They differ in who can bring a claim, who can be held liable, and how compensation works. Understanding the distinction is essential for HR professionals managing investigations, employee relations issues, and risk.

What counts as a qualifying disclosure?

Every whistleblowing claim begins with a qualifying disclosure. For a disclosure to qualify, four conditions must be met:

  1. There must be a disclosure of information.

This means actual information, not vague allegations, threats to report, or simply gathering evidence.

  1. It must relate to one of six types of wrongdoing:
  • criminal offences;
  • breach of legal obligations;
  • miscarriages of justice;
  • health and safety risks;
  • environmental damage; or
  • deliberate concealment of any of the above.
  1. The worker must reasonably believe the information shows wrongdoing.
  1. They must reasonably believe the disclosure is in the public interest.

This requirement prevents purely personal grievances from being treated as whistleblowing.

Protected disclosures: to whom must they be made?

Not all qualifying disclosures are automatically “protected”. A disclosure is normally protected if made internally to the employer. External disclosures – to regulators, prescribed bodies, or in very limited circumstances the media – are protected only if stricter conditions are satisfied. HR should therefore encourage clear internal reporting channels, which increase the likelihood that disclosures are made safely and legally.

Who is protected?

  1. Protection from dismissal (employees only)

Only employees can claim automatic unfair dismissal if the principal reason for their dismissal was making a protected disclosure.

  1. Protection from detriment (a much wider group)

The right not to suffer detriment covers all workers, not just employees. This includes:

  • employees
  • agency workers
  • LLP members
  • Judges
  • student nurses
  • some self-employed NHS professionals

The courts continue to interpret ‘worker’ broadly, meaning HR teams should assume that many non-traditional workers may be protected.

Who can the claim be brought against?

Automatic unfair dismissal (s103A) can only be brought against the employer.

Detriment claims (s47B) can be brought against the employer and/or individual workers or agents. The employer is vicariously liable for detriments by its workers unless it can show it took all reasonable steps to prevent them – an extremely high bar.

This creates the potential for personal liability for managers involved in the alleged mistreatment of whistleblowers.

Does the decision-maker need to know about the Whistleblowing?

Dismissal claims: the Jhuti principle

In Jhuti v Royal Mail, the Supreme Court held that if someone senior manipulates the process by hiding the real (whistleblowing-related) reason for dismissal behind an invented one, tribunals must uncover the true motive – even if the decision-maker was unaware.

Detriment claims: a different approach

In Henderson v GCRM, the courts confirmed that Jhuti does not apply to detriment claims.
For detriment claims, the motivation of the actual person who carried out the detriment is what counts. A manager cannot be personally liable based on someone else’s hidden motive.

Why the recent Court of Appeal decision matters

Two recent cases – Wicked Vision v Rice and Barton Turns v Treadwell – have added another layer of complexity.

In both cases:

  • The employees were dismissed and claimed automatic unfair dismissal under s103A.
  • They later sought to add a detriment claim relating to the dismissal itself against the employer.
  • They did not add the individual decision-makers as respondents.

The Court of Appeal, in a joined appeal, held that they could pursue a detriment claim for dismissal against the employer alone on the basis of the employer’s vicarious liability for the dismissing act of the decision-makers. The court concluded it was bound by the earlier decision in Osipov v Timis, which allowed detriment claims for dismissal to proceed. This was possible even though the individuals who were alleged to have caused the detriment were not included.

This means that, for now, whistleblowing dismissal can form the basis of an automatic unfair dismissal claim and a detriment claim. Each claim has its own test and compensation rules.

The issue may be appealed to the Supreme Court, but until then this remains the law.

What this means for HR

Employees who believe they were dismissed for whistleblowing now effectively have two ‘routes’ to challenge their dismissal:

  1. Automatic Unfair Dismissal
  • Claim against the employer only
  • Test: Was the principal reason for dismissal the protected disclosure?
  • Compensation is based on the financial losses flowing from dismissal
  1. Detriment (including dismissal as the detriment)
  • Claim against the employer and/or individual employees
  • Test: Did whistleblowing have a material influence on the detriment?
  • Compensation for losses flowing from the detriment, including potential for injury to feelings

This dual pathway creates greater exposure for organisations – both financially and reputationally – and increases the importance of robust whistleblowing procedures, fair investigations, and objective decision-making.