A private matter

The Public Interest Disclosure Act 1998, known as the Whistleblowers’ Act, was incorporated in to the Employment Rights Act 1996 in 1999 to protect the employment rights of employees and workers who make disclosures in which the needs of the public interest are paramount. These rights are in relation to a raft of issues including health and safety. Dismissal of an employee will be automatically unfair if the reason arises from the making of a protected disclosure. Furthermore, there is no qualifying period of employment, no statutory ceiling on compensation and no upper age limit on any whistleblower bringing a claim to the Employment Tribunal.

The outline of a serious whistleblowing case is contained in Cooke v West Yorkshire Probation Board. This is particularly interesting for occupational health nurses who are often pressured by employers to disclose confidential information. Although the employment tribunal considered that guidelines given by a professional body on the ethical duty of confidentiality must be observed in the public interest, the case itself is not one on which future courts could rely. But as the decision is good for the profession, it is to be hoped it does not have to go through appeal processes in which it might be overturned. 

Protected disclosures

Employment protection rights arise when there is mischief afoot under the Whistleblowers’ Act. The essential feature is the employee’s reasonable belief that one or more of the following has happened, is happening or is likely to happen:

– commission of a criminal offence;

– failure to comply with an obligation imposed on a person by law;

– occurrence of a miscarriage of justice;

– danger to the health or safety of any individual;

– environmental damage; or

– deliberate concealment of any of the previous five matters.

The protection arises where disclosure relating to the six topics set out is made in good faith to the employer or other responsible person, such as a supervisor or in occupational health matters, some other appropriate person. The legislation also provides for disclosure to a “prescribed person”.

In disclosing to a person other than the employer, the employee must have a reasonable belief that he would suffer a detriment from his employer if he were to make a disclosure closer to home. Indeed, the employee must have a reasonably founded fear that evidence about the matter of concern will be concealed or destroyed by the employer. In any event, the contractual duty of confidentiality is overridden by the public interest in prevention of crime and danger to health and safety.

Disclosure

– Must be in good faith

– Reasonable belief that disclosure or allegations are true

– No personal gain for making the disclosure

-It is reasonable to make the disclosure

Reasonable belief

The Faculty of Occupational Health recognises that occupational health workers have access to information that could be covered by the Whistleblowers’ Act. It advises personnel to discuss any proposed disclosure or request for information with their defence organisation or legal adviser before making any disclosure. This applies even where there is pressure from work colleagues or members of staff to make a disclosure, bearing in mind the competing ethics of disclosure and confidentiality.

The essential feature of a whistleblowing case is that the disclosures inherent in the procedure must have been made in good faith. The reasonable belief of the whistleblower is more important than whether the matter of concern is true or arises from any actual wrongdoing. The tribunals will establish the facts and weigh up what may be the malice of a disaffected employee against a disingenuous explanation of an employer. An effective whistleblowing policy will ensure that the employer communicates the fact that complaints will be taken seriously and no detriment will result from any report. It will also reduce the possibility of any potential disclosure being taken out of the workplace.

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