Disclosure in the workplace: blowing the whistle

The Public Interest Disclosure Act 1998 (PIDA) has taken effect through amendments made to the Employment Rights Act 1996 in July 1999. It protects employees from being dismissed or penalised by their employers as a result of blowing the whistle on certain serious concerns.


It came about because of some tragic incidents in the recent past, the investigations into which showed that members of staff in the affected organisations had been fearful of suffering personal consequences if they had made public disclosure of matters of which they had knowledge.


The Zeebrugge ferry disaster in March 1987 was a case in point, involving the loss of 187 lives and numerous injuries. Lord Justice Sheen conducted a public inquiry into the disaster and his report described a “disease of sloppiness” and negligence at every level of the hierarchy in P&O European Ferries.


The employer may be deemed to have knowledge of defects in their organisation or breaches of the law in the workplace. According to the words of the judge in the 1968 case of Stokes v GKN (Bolts and Nuts) Limited, the employer knew or ought to have known that mineral oils seeping into workers’ overalls were likely to cause scrotal cancer – even though the company doctor withheld the relevant information.


Employees who withhold information may contribute to the employer’s negligence, but those who are aware of facts that should be disclosed in the public interest should be able to do so without fear of consequences to their job or the way they work.


The protection of the law


Dismissing an employee who makes a protected disclosure will result in unlimited compensation. It will be automatically unfair and is not subject to any qualifying period, much like discrimination legislation. However, unlike discrimination legislation, the burden of proof is on the employee to show that the disclosure was protected and that the disclosure was the reason for dismissal.


Agency workers have no right to claim unfair dismissal, but the right they have in common with employees is that they are entitled not to be subjected to a detriment. Detriment may be subjective: an awareness of being treated differently, of being bullied or being subjected to some more subtle way of being made miserable at work. It may also be obvious. Examples that come to mind are the refusal of a pay increase, failure to have access to promotion, and exclusion from training programmes.


A protected disclosure may be made even if the employer previously had the information or knew the employee was going to tell all. It is made in the employee’s reasonable belief that one of five key events is likely to or will take place, is going to take place, has happened or has been concealed.


The events are:




  • The commission of a criminal offence


  • Any failure to comply with an obligation imposed on a person by law


  • The occurrence of a miscarriage of justice


  • Environmental damage


  • Danger to the health or safety of any individual.

To attract the protection of the law, the disclosure must be made in good faith and to prescribed persons ranging from someone of managerial status to an external authority, one of which is the Health and Safety Executive (HSE). Although the effect of the Act is, if the situation warrants, to override the professional duty of confidentiality, where professional ethical standards are involved, legal advice should be sought if time permits. This in itself will be a disclosure qualifying for protection.


Beyond a grievance


A grievance is a matter of personal concern to an employee. A protected disclosure is, by its very nature, of public interest and is made for the greater good. The key concept is that the person making the disclosure must have a reasonable belief that, in the words of the law, “tends to show” the wrongdoing. Even if the whistleblower later discovers they have made a mistake, they are still protected from detriment or unfair dismissal.


Where disclosure is made outside the employment area as provided by the law, to “a prescribed person and wider external disclosure” there are the additional requirements of a reasonable belief that the information is “substantially true”, that it must not have been disclosed for personal gain, and is “reasonable” in all circumstances.


This will have an effect on whether and how matters are reported to the press and will be part of the balancing exercise in assessing how best to deal with a difficult situation.


The law provides an additional protection for the potential whistleblower: “gagging” clauses are likely to be ineffective if their purpose is to cloak the potential for wrongdoing under onerous confidentiality obligations.


A whistleblowing policy


Employees who wish to disclose concerns and remain under the umbrella of statutory protection are required to follow procedures set out in a specific policy document that should be made known to employees and contractors. Any organisation wishing to assure its staff of its integrity will find it useful to have whistleblowing arrangements in place, headed up by a statement that the policy is designed to assist any concerns staff may wish to raise if they have discovered any existing, proposed or past impropriety.


The document should set out its remit, and make it clear that it is not to be used as a supplement to any matter that has been addressed under the disciplinary or grievance procedures. The aim will be to resolve issues through internal enquiries to avoid, if possible, the involvement of an external authority.


The complaint will be dealt with as confidentially as possible, but absolute confidentiality cannot be assured if the investigation involves other members of staff. Even so, the complainant should, as far as possible, be kept anonymous. However, it would not normally be appropriate to accept a complaint from anyone but a named individual.


The complaint itself should be in writing and supported by evidence, if available.


Since the complaint is a matter of public concern, it should be resolved as speedily as possible. In a large organisation, there may be sufficient resources to enable a panel to convene to consider whether any action should be taken and a full explanation given to the whistleblower whatever the outcome. Even with the protection of the law, it is a brave person who can bring a major concern to public scrutiny.


Linda Goldman is a barrister at 7 New Square. Joan Lewis is an independent employment law consultant, licensed by the General Council of the Bar. Any enquiry about this article may be made to Joan Lewis at joanlewis25a@aol.com Telephone 020 8943 0393



Casebook


Street v Derbyshire Unemployed Workers’ Centre (2004) IRLR 687, Court of Appeal


S was on bad terms with H, one of Derbyshire Unemployed Workers’ Centre’s senior employees. She complained about his conduct to one of the funding organisations that supported the company but he was exonerated after an investigation. S was then dismissed for gross misconduct and breach of trust and claimed that the dismissal was automatically unfair because her report about H amounted to a protected disclosure. The employment tribunal held that, although the complaint was a qualifying disclosure because S reasonably believed he had failed to comply with his contractual obligations, the disclosures were not protected because they had not been made in good faith.


The Employment Appeal Tribunal, upheld by the Court of Appeal, agreed: there was nothing inconsistent between a person having a true belief yet promoting it for reasons of personal antagonism. A disclosure cannot be made in good faith if an ulterior motive of malice was the main purpose for making it. The purpose of the law is not to enable the resolution of personal grudges but to protect those who make disclosures in the public interest.


Bolton School v Evans (2007) IRLR 140


B, an IT teacher, believed the school computer system was insecure. He reported his concerns but his complaint was rejected. He then hacked into the system to prove that it was insecure and was then disciplined because of his unlawful activity. He claimed that the disciplinary action amounted to constructive (unfair) dismissal under the whistleblowing provisions.


The EAT rejected his claim on the grounds that he had been disciplined for the specific misconduct of hacking, not the act of whistleblowing. The judgment stated: “An employee cannot be entitled to break into his employer’s filing cabinet in the hope of finding papers which will demonstrate some relevant wrongdoing He is liable to be disciplined whether he turns up such papers or not.” The Court of Appeal upheld the decision and further found that the act of hacking did not amount to a disclosure, nor did telling the headmaster about it afterwards.

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