A recent case, Street v Derbyshire Unemployed Workers Centre (2004), has reopened legal issues surrounding whistleblowers and disclosures made ‘in good faith’.
Street made disclosures alleging misbehaviour by her senior manager to one of the bodies providing funds to her employer.
The senior manager was exonerated, and disciplinary proceedings culminated in her dismissal. She made a complaint of unfair dismissal, alleging she had been dismissed for making the disclosures.
Q What is a whistleblower?
A A whistleblower is a person who raises a concern about a dangerous or illegal act or practice that they become aware of through their work. For example, they could come across health and safety risks, potential environmental problems, fraud or corruption.
They often do not have a personal interest in the outcome of any investigation into the concern, but are simply trying to alert others, and are therefore said to be acting in the public interest.
The Public Interest Disclosure Act 1998 (PIDA) governs whistleblowing. PIDA came into force on 2 July 1999. It amends the Employment Rights Act 1996, and protects workers against dismissal or other penalties as a result of making a ‘protected disclosure’.
Section 103A of the Employment Rights Act 1996 makes it automatically unfair to dismiss a worker for making a ‘protected disclosure’, even if they have less than 12 months’ service.
There is no cap on compensatory awards made under the Act to an employee who blows the whistle, as there is under normal unfair dismissal procedure.
Q Which disclosures are protected?
A Protected disclosures must be:
– disclosures of information
– ‘qualifying’ disclosures
– made in accordance with the permitted methods of disclosure.
Q What is a qualifying disclosure?
A A qualifying disclosure is one that – in the reasonable belief of the worker making it – tends to show that at least one of the following has occurred, is occurring, or is likely to occur:
– A criminal offence
– A failure to comply with a legal obligation
– A miscarriage of justice
– The endangerment of health and safety
– Damage to the environment
– Deliberate concealment of any matter falling within any one of the above.
Q What is ‘reasonable belief’?
A The test for ‘reasonable belief’ focuses on what the worker in question believed, rather than what anyone else would have believed in the same circumstances. The principle is to achieve a fair balance between the interests of the worker who suspects malpractice, and those of the employer, who could be damaged by unfounded allegations.
Q What are the permitted methods of disclosure?
A PIDA sets out details of to whom qualifying disclosures can be made in order to be protected. The obligations on workers to ensure that their disclosures are protected are less stringent for those making internal disclosures – for example, to their employers – than for those making external disclosures, such as to the press.
The overriding principle for all disclosures (except those to legal advisers) is that they must have been made in good faith. A disclosure that is not made in good faith will not be protected.
Q What is meant by ‘good faith’?
A ‘Good faith’ is not defined in PIDA, but generally means acting with honest motives.
In Street v Derbyshire Unemployed Workers Centre (2004), the Court of Appeal affirmed the Employment Appeal Tribunal’s decision. It said that to make a protected disclosure in ‘good faith’, the person’s predominant motive must be “to remedy the wrong that occurred”.
While the worker’s disclosures were qualifying disclosures under PIDA, they were not protected, as they lacked the requisite good faith. At first, the tribunal held that the worker had been motivated by personal antagonism.
The Employment Appeals Tribunal agreed, saying that it was not enough that a worker had a reasonable belief that they were right. The Court of Appeal held that a person might reasonably believe an allegation was true while also being motivated by personal antagonism. It said that tribunals should only find that a disclosure was not made in good faith where the predominant purpose for making it was an ulterior motive, and was not in the public interest.