Legal opinion: Has protection for whistleblowers gone too far?

Recently, the Government’s Chief Nursing Officer stated that more needed to be done to encourage whistleblowing in the battle against serious failings in NHS Trusts. Further, the health secretary has announced that changes will be made to the NHS constitution to enshrine support and protection for whistleblowers.

On the other hand, employers and commentators criticise the breadth of the protection afforded to those who assert that they have made a protected disclosure. So, which is it?

In early September 2011, Dame Christine Beasley said that more had to be done to support whistleblowers in the health service. She made her opinion clear during a public inquiry into catastrophic failings at Stafford Hospital, where it had taken too long for poor standards of care to be reported. In a written statement, she said that it was difficult for individuals to challenge a nurse or doctor within the medical profession, and added that more needed to be done to protect whistleblowers from victimisation.

A “qualifying disclosure”

For an employee to be protected as a whisteblower under the Public Interest Disclosure Act 1998, he or she must make a “qualifying disclosure”. This can be done only if the information that he or she is disclosing falls within the realm of what has been defined worthy of protection. This includes disclosing, for example, that a criminal offence has been committed or that health and safety has been endangered. In addition, a qualifying disclosure must be made to an appropriate person. Typically this would be the employer, but alternatively it could be the relevant regulatory body. Only in extreme cases would it be considered appropriate for the employee to report the matter publicly by going to the press.

It is important to understand that whether or not the person is factually correct makes no difference under the law. As long as the disclosure is made in good faith and with reasonable belief in the information conveyed the employee is protected.

Once someone has technically qualified as a whistleblower in the eyes of the law it is unlawful to treat him or her less favourably because of it. Dismissing a whistleblower for having made a disclosure would automatically be deemed unfair and, should he or she claim compensation from the courts, the level of compensation would be uncapped. The recent judgment of the Employment Appeal Tribunal (EAT) in Fecitt and others v NHS Manchester has indicated that, where a whistleblower has suffered unwanted treatment that amounts to a detriment, the employer must be able to show that this was “in no sense whatsoever” on the grounds that he or she had made the protected disclosure.

There are numerous examples of people who have been treated poorly by colleagues and employers who feel that they have “broken ranks”. Few will disagree that anyone who is subjected to such harassment deserves the full protection of the law. There is a clear and obvious public interest in not allowing wrongdoing to be swept under the carpet; allowing staff to disclose important information without fear of their being hounded out of employment. However, the whistleblowing provisions are increasingly being exploited by those who represent claimants in a bid to avoid the statutory cap on unfair dismissal damages and in pursuit of injury-to-feelings awards. In addition, the law has evolved in such a way that matters that have no public interest element to them at all are falling under the ambit of the whistleblowing provisions.

Exploitation of whistleblowing provisions?

It should not be forgotten that the name of the statute which created the whistleblowing provisions is the Public Interest Disclosure Act. However, the ink was hardly dry before the EAT ruled in favour of an employee who claimed that disclosing a breach of a legal obligation included the disclosure of a breach of the terms in the employee’s own contract. This meant that the whistleblowing provisions became a useful tool in the armoury of claimants who are engaged in a private dispute with their employer. In addition, those representing claimants increasingly argue that documents that initially appeared to be innocuous correspondence between an employee and their employer later constitute a protected disclosure. The extent to which whistleblowing provisions have been exploited has forced the Government to suggest that all employment tribunal claim forms that assert a whistleblowing claim ought to be referred to the relevant regulator.

Ultimately, what this all means is that the protection of genuine whistleblowers – a laudable goal – has come at a price. The law now goes further than was ever intended, to a point where it is hard to see that additional legal protection is merited or even possible. Indeed, owing to the widespread exploitation of the whistleblowing provisions for tactical reasons in the employment tribunal, it seems fair to observe that redefining the scope of the protection for whistleblowers ought to be a governmental priority.

Nick Siddall, barrister, Kings Chambers

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