Hello and welcome to the latest in our series of employment videos.
In today’s video we will be looking at the protection given to whistleblowers at work.
The Public Interest Disclosure Act 1998 came into force on the 2 July 1999. It provides protection for workers, both against dismissal or being subjected to any detriment, on the ground that they have made a protected disclosure. This has become a fertile area for employment litigation.
To be protected by the legislation the worker must make a “protected disclosure”. A protected disclosure is a “qualifying disclosure”, made in good faith, to an employer, regulator, legal adviser, minister or other responsible or prescribed person about a dangerous or illegal activity or omission which satisfies certain conditions. For there to have been a qualifying disclosure, the worker must have made a disclosure of information; the information must relate to one of six types of "relevant failure"; and the worker must have a reasonable belief that the information tends to show one of the relevant failures.
Disclosure of information
One of the conditions for a qualifying disclosure is that the worker must have made a disclosure of information. There have been a number of cases on this point. In one recent case the EAT considered whether a solicitor’s letter on behalf of an employee amounted to a disclosure of information. It held that there was a distinction between communicating information, which would be protected, and making an allegation which doesn’t convey necessary facts and therefore isn’t protected. In that particular case the solicitor’s letter contained only an allegation and so wasn’t a protected disclosure.
What amounts to a qualifying disclosure?
Even if there is a disclosure of information this only amounts to a qualifying disclosure if, in the reasonable belief of the worker, it tends to show that one of the six specified types of malpractice has, or is likely to take place. The categories of wrongdoing covered by the legislation include breach of any legal obligation. This has been interpreted widely by the courts. Following the decision in Parkins v Sodexho there is no specific requirement that a qualifying disclosure must be made in the public interest, meaning that workers who blow the whistle about breaches of their own employment contract can claim breach of a legal obligation and are protected. This is contrary to the intention of the legislation. The government has just published the Enterprise and Regulatory Reform Bill which includes an amendment to the whistleblowing provisions which will require that a disclosure be made in the public interest, as well as in the reasonable belief of the worker making the disclosure.
When is a qualifying disclosure a protected disclosure?
In order to qualify for the protection under the act, the qualifying disclosure must be a protected disclosure. This will depend on the identity of the person to whom the disclosure is made and on other conditions having being satisfied.
The legislation encourages internal disclosure to the employer provided that it is made in good faith, but also permits external disclosure to certain prescribed persons as long as further conditions are met. In practice most qualifying disclosures are made to the worker’s employer.
Disclosures can be made to bodies outside those prescribed, such as the media. However, there are rigorous conditions for such wider qualifying disclosures to be protected: namely that the worker must make the disclosure in good faith; reasonably believe that the information disclosed and any allegation contained in it are substantially true; not be made for personal gain; and have either previously disclosed substantially the same information to their employer or reasonably believe at the time of the disclosure that they will be subject to a detriment or that material evidence will be concealed or destroyed if such a disclosure is made .
One such disclosure was made in the case of Good v Marks and Spencer in which the claimant was concerned about proposals to change the company’s discretionary enhanced redundancy terms. He had complained to his line manager, but had also written a letter to The Times newspaper. The claimant was dismissed and he claimed that the reason for his dismissal was for making qualifying disclosures. The EAT held that neither the statement to the line manager nor the letter to The Times constituted a protected disclosure. The statement to the line manager was merely a statement of the claimant’s state of mind and was therefore not a disclosure of information. The statement to The Times had not previously been made in substantially the same form to the employer and therefore could not be protected.
Suffering a Detriment
Liability under the act arises where the worker has either been dismissed or been subjected to a detriment by their employer because they have made a protected disclosure. A recent Court of Appeal decision considered the test of causation in whistleblowing detriment cases and also whether an employer can be held vicariously liable in such cases.
In this case, three experienced nurses raised their concerns about the qualifications of another member of staff. It was accepted that it was a protected disclosure. However, as a result of making the disclosures, the claimants were subjected to hostile and unpleasant acts by members of staff who supported the colleague. The claimants raised grievances which were only partially investigated but, as a result, two of the claimants were re-deployed and a third claimant wasn’t given any more work as a bank nurse. The claimants complained to the employment tribunal that they had been subjected to a detriment as a result of making protected disclosures.
The Court of Appeal held that the test to be applied was whether the making of the protected disclosure materially influenced the employer’s treatment of the whistleblower. In this case, the employment tribunal had clearly been satisfied that the reasons given by the employer for acting as it did were genuine and the fact that the claimants had made protected disclosures had no influence on the decision.
In addition, the claimants had to show that the employer was vicariously liable for the acts of the other individuals. The liability under the legislation arises where the worker has been subjected to a detriment by their employer. There is no statutory provision, unlike in discrimination cases, whereby an employer is liable for detriment caused to one worker by another worker in the course of employment. Since an employer can only be vicariously liable for the wrongs of employees where the employees themselves have committed a legal wrong, if the colleagues had not been guilty of contravening any legislation, their employer couldn’t be held vicariously liable for their actions.
Public Concern at Work, the whistleblowing charity, has called for a government review of the legislation to ensure that whistleblowers in such a situation are protected. It is concerned that the result of the ruling is that an employer who does not do enough to protect staff can hide behind their own inaction. It’s also concerned that workers would remain silent rather than blow the whistle in the public interest. On 18 October 2011, the department of health announced that changes will be made to the NHS constitution to ensure that NHS staff who raise concerns about proper patient care receive greater support.
This video is intended to give you an overview of recent developments in the law on whistleblowing. If you have any questions on any aspects of today’s topic then please do not hesitate to contact us. Thank you.