the interest of the employers. A lack of such a procedure may make whistleblowers disclose the issue outside of their workplace.183
Moreover, employees of state bodies will have protection, should they directly inform about their concerns a superior ministry and not their employer. It seems that the objective of the implementation of such regulations is to increase the certainty in the examination of the issue and the elimination of potential wrongdoings. If a whistleblower encounters negative consequences in result of disclosing information in such a way, their claim may be directed against the employer, not against the minister to whom he disclosed information.184
On the other hand, Article 43D of the Act of 1996 constitutes that qualifying disclosure also occurs if it is made during the reception of legal advice. The regulations enable employees to receive legal advice on wrongdoings perceived by them and to receive legal protection from potential negative consequences. When an employee authorizes their lawyer to further ←42 | 43→disclosure of information, e.g. to the media or the employer himself, the actions of the lawyer are considered as undertaken on behalf and for the benefit of the employee.185
The provisions impose more rigorous conditions on employees who disclose information outside of the organization.186 In such a case, the protection is granted to a whistleblower, if they disclose to a prescribed person, indicated in a special register,187 and truly believe that a relevant offence falls within the scope of matters to which such a person was appointed, and that the disclosed information and all included allegations are substantially true. What follows from the above is that whistleblowers may turn to a prescribed person with an issue within the scope of its competences. In this regard, certain institutions should be indicated, such as those that act in areas of finances, health services, environmental protection, insurance, or consumer rights, including local government.188 To obtain legal protection, whistleblowers must have reasonable belief that information and all included allegations are substantially true and relevant for the regulatory body.189 Let us indicate that contacting bodies not in the register is qualified as disclosure to the wide audience, which results in a necessity to fulfil more rigorous conditions.190
However, in a case of disclosure to the wide audience, whistleblowers omit not only their employer but also proper supervisory bodies, and they present observed wrongdoings to e.g. the police or the media in order to popularize the issue and gain special attention.191 The whistleblower when deciding on this path of disclosure – in order to receive protection – must demonstrate the important reasons that prevented him from informing in ←43 | 44→the first place his employer or the supervisory body.192 In such a case, the protection is granted to whistleblowers, if:
1) they have reasonable belief that the disclosed information and all included allegations are substantially true;
2) the disclosure is not for personal gain; and
3) all circumstances suggest that it is reasonable to disclose information, and one of the following conditions is met:
(a) at the moment of disclosure, the employee has reasonable grounds to think that they will suffer harm from the employer if the information is disclosed to this employer or a prescribed person;
(b) should nobody be provided for the objective of Article 43F – disclosure to a prescribed person – concerning a given offence, the employee has justified reasons to think that proofs connected to the given offence will presumably be concealed or destroyed if disclosed to the employer; or
(c) the employee previously disclosed the same information to the employer or to the prescribed person.
When determining whether – in all circumstances of the issue – it was reasonable to disclose information, courts consider, among other things, the identity of the person to whom the information was disclosed, the significance of the offence, and whether it still occurs or presumably will occur in the future.193 Noteworthy, the required degree of the offence’s significance will be lower when the disclosure is made to the police than if the same information is disclosed to the media.194
The provisions of the Act of 1996 also guarantee protection in the case of disclosing information that does not meet the above conditions, if it concerns exceptionally serious offenses. In accordance with Article 43H of the Act, the qualifying disclosure will take place if the employee:
– has justified reasons to think that disclosed information and all included allegations are substantially true;
←44 | 45→
– does not disclose information for personal gain;
– discloses an offence of exceptionally serious character and it is reasonable to disclose information in all circumstances of the issue.
On the other hand, Paragraph 2 of the Article constitutes that – during the examination whether the disclosure of information in all circumstances of the issue is reasonable –the identity of the person to whom the information is disclosed is specifically considered; e.g. the police or the press. The provisions do not contain any particular guidelines on the basis of which a given offence may be recognized as “particularly serious.” This issue is decided individually for every case.195
In accordance with the British legislation, a dismissal of a person disclosing cases of violations will be recognized as unfair if its only or main reason is the fact that a whistleblower made a protected disclosure. Moreover, employees are also protected from suffering any other detriment related to the whistleblowing activity, e.g. making threats or limiting promotion opportunities. People who make protected disclosures in accordance with the provisions of the PIDA and were dismissed or suffered other detriment due to their whistleblowing activity may file a complaint to employment tribunals, which deal with the issues of whistleblowers in the United Kingdom. In their jurisprudence, employment tribunals are limited to deciding on the occurrence of the detriment of whistleblowers and on the amount of due compensation; i.e. they do not decide on the wrongdoings identified by employees.196
In accordance with Article 47B introduced by the PIDA to the Act of 1996, an employee has the right for his situation not to deteriorate due to any action or any deliberate negligence on the part of the employer, ←45 | 46→undertaken on the basis of the protected disclosure made by the employee. Noteworthy, the employer will be also held responsible in a case when the employee, after informing about wrongdoings, is exposed to detriment colleagues, e.g. intimidation or harassment. Such an activity is treated as also made by the employer.197 It does not matter if it happened with the knowledge or permission of the employer.198 The employer may defend himself by indicating that he undertook all reasonable steps to avoid detriment due to the abovementioned actions.199
If the employment tribunal recognizes the complaint of an employee as valid, it may grant him compensation from the employer.200 Its amount is established based on what is just and right in all circumstances of the issue, taking into consideration the violation that is the subject of the complaint and also every detriment suffered by the whistleblower due to the deterioration of his situation.201 Compensation should cover in particular reasonable costs bore by the whistleblower or lost profits – e.g. the remuneration for the unemployment period – which he could expect if he did not lose the job or did not experience other victimized actions of the employer.202 Noteworthy, recognized compensation is not subject to the statutory limit that is applied in standard claims of unjustified dismissal.203 However, we should remember that the employment tribunal has the right to reduce all compensations even by 25 %, if it deems that the protected disclosure of information was not made in good faith.204 In the case of litigation, the employer must provide proof. He must explain in front of the tribunal the reasons for which he undertook negative activities
