Navigating whistleblowing: practical guidance for in-house lawyers

Whistleblowing remains one of the most complex situations an in-house lawyer can face. You have a duty to the rule of law and to wider society, yet you’re also bound by duties of confidentiality to your employer-client and the principle of legal professional privilege.

The Law Society’s recently published guidance on whistleblowing as an in-house solicitor, developed in collaboration with the charity Protect and forming part of the in-house ethics framework, seeks to provide a roadmap for navigating these competing obligations. However, many in-house lawyers remain unclear about what they can disclose, when and to whom.

We set out below the practical issues every in-house lawyer should bear in mind.

Be clear on what constitutes a protected disclosure

Your disclosure must relate to one of the recognised categories of wrongdoing under the Public Interest Disclosure Act 1998 and the Employment Rights Act 1996:

• A criminal offence
• Breach of a legal obligation
• Miscarriage of justice
• Danger to health and safety
• Damage to the environment.

From April 2026, allegations of sexual harassment also fall within the remit of protected disclosures. A deliberate cover-up of any recognised wrongdoing is also covered.

In addition to ensuring that what you intend to disclose shows wrongdoing of a recognised kind, you must ensure that it amounts to specific information with factual content and isn’t mere suspicion, generic information or unfounded allegations. The Law Society guidance stresses that you should, where possible, stick to what you have seen first-hand.

Consider the public interest test

Crucially, in addition to the disclosure falling within one of the recognised categories of wrongdoing, in-house lawyers who blow the whistle must also have a reasonable belief that the disclosure is in the public interest. As a general rule, if you act as a witness to wrongdoing, you’re more likely to satisfy the public interest test.

Other factors that help identify whether a matter is in the public interest include:

1. The number of people whose interests are affected – in general, the more people affected by the wrongdoing, the more likely the disclosure will be in the public interest
2. The nature of the alleged wrongdoing – for example, disclosure of deliberate wrongdoing is more likely to be in the public interest than disclosure of unintentional wrongdoing
3. The nature of the interest affected
4. The identity of the alleged wrongdoer – for example, the larger, more important or more senior the wrongdoer, the more likely the disclosure is to engage the public interest. Systemic bullying by the CEO of an organisation, compared with the behaviour of a particular manager, is one example. When considering this issue, think about the size of your organisation and the community it operates in – its staff, suppliers and clients – and the impact of the alleged wrongdoing on that community. If the disclosure constitutes protection of a “section of the public”, the public interest test is more likely to be satisfied.

Finally, in-house lawyers should bear in mind that public interest doesn’t need to be the sole reason for making the disclosure for the public interest test to be satisfied.

Understand the impact of legal professional privilege

Perhaps the single greatest challenge for in-house lawyers is legal professional privilege (LPP). LPP is a cornerstone of the legal profession, with third parties benefitting from being able to speak openly without discussions being further disclosed.

Whistleblowing protections will not be available to you, as an in-house solicitor, if your disclosure breaches LPP. Section 43B (4) of the Employment Rights Act 1996 expressly removes qualifying disclosure status where the information was disclosed to you in the course of obtaining legal advice. This can be far-reaching: even being copied into an email discussing relevant issues may be enough for an employer to argue the LPP applies.

The Employment Tribunal decision in Smith v Scapa Group plc illustrates the severity of this point. The claimant lost protection even though she was disclosing the information back to the very person who had originally sought her advice.

However, not all communications attract LPP. For example, general commercial considerations, strategy discussions and non-legal operational matters are unlikely to be privileged.

In-house lawyers should therefore consider how information relating to the alleged wrongdoing was communicated, to determine whether it may be covered by LPP.

Even where concerns are based partly on privileged and partly on non-privileged information, you may be able to disclose the non-privileged elements separately, provided the legal and non-legal elements are not too intermingled. For example, can you redact privileged information from non-privileged material for the purpose of making the disclosure?

The narrow iniquity exception may disapply LPP where there’s a strong prima facie case that communications were brought into existence for criminal or fraudulent purposes, and that you were given the information for the purpose of assisting in, or furthering, that criminal or fraudulent purpose — though this is a high bar.

Finally, the usual rules on the waiver of privilege apply. In-house counsel should therefore consider whether the employer-client has waived privilege, either expressly or, perhaps more likely, by implication through disclosure of the privileged communication to third parties. Crucially, to rely on the waiver of privilege, the waiver must have occurred by the time the protected disclosure takes place.

Report internally first

The Law Society guidance recommends reporting wrongdoing internally as a first step, not least because it helps preserve confidentiality. Disclosing to your line manager or to those with ultimate control in the organisation — such as the board — is unlikely to breach LPP. If your employer has a whistleblowing policy, familiarise yourself with its reporting channels. If it doesn’t, the Law Society has published a model whistleblowing policy template that you may encourage your organisation to adopt.

If internal reporting is ineffective or inappropriate, consider external reporting. The Solicitors Regulation Authority (SRA) is the appropriate body for wrongdoing by other solicitors or law firms and can issue statutory production notices to collect privileged material. For wrongdoing by non-SRA-regulated employers, contact the relevant sectoral regulator — such as the Financial Conduct Authority for financial institutions or the Information Commissioner’s Office for data protection breaches — but take great care to provide only information that doesn’t breach your LPP obligations.

Seek early, confidential advice

The guidance highlights several sources of confidential support. You can contact the SRA’s professional ethics helpline anonymously and on a no-names basis at the earliest stage. The Law Society’s Practice Advice Service and the charity Protect also offer free, independent guidance on raising concerns safely and effectively.

Given the potential consequences — ranging from regulatory sanctions to dismissal and even criminal sanctions where disclosure itself is a crime (for example, for in-house counsel working for the Ministry of Defence or those bound by the Official Secrets Act) –  seeking specialist advice before acting is prudent professional practice.

The confusion surrounding the Law Society’s guidance is unlikely to have been resolved by the latest iteration. In an increasingly complex environment, concerns expressed by in-house lawyers about how to navigate their professional, moral and ethical obligations, while protecting both personal interests and those of their employer-clients, are unlikely to go away any time soon.

The Law Society’s latest draft guidance falls short of mitigating the risks attached to whistleblowing for in-house lawyers. As such, in-house lawyers should continue to exercise caution, take a measured approach to whistleblowing and seek advice as early as possible.