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Title: Seven Years Of Public Interest Disclosure Legislation In The Uk: What Have We Learned About How To Protect Whistleblowers?
Professor David Lewis, Centre for Legal Research, Middlesex University.
A. INTRODUCTION.
• whistleblowing is assumed to be in the public interest.
• purpose of the legislation: “to protect individuals who make certain disclosures of information in the public interest”.
• the relevance of the common law. [Workers have no general right to disclose information about their employment. The public interest defence to breach of confidentiality claims does not require good faith].
B. QUALIFYING DISCLOSURES.
• Section 43B of the Employment Rights Act 1996 (ERA 1996) defines a "qualifying disclosure" as one which a worker reasonably believes tends to show a matter falling into one or more of the following: i) a criminal offence; ii) a failure to comply with any legal obligation; iii) a miscarriage of justice; iv) danger to the health and safety of any individual (i.e. not necessarily a worker); v) damage to the environment; vi) the deliberate concealment of information tending to show any of the matters listed above.
• The impact of Article 10 of the European Convention on Human Rights: R v Shayler [2003] AC 247
• Disclosure made before the legislation was in force : Miklaszewicz v Stolt Ltd [2002] IRLR 344
• Failure to comply with a legal obligation :
Parkins v Sodexho Ltd [2002] IRLR 109 & Douglas v Birmingham City Council EAT 0518/02
- Reasonable belief: Darnton v University of Surrey [2003] IRLR 333 and Babula v Waltham Forest College [2007] EWCA Civ 174 (overruling Kraus v Penna [2004] IRLR 260) .
C. PROTECTED DISCLOSURES.
• Section 43C (1) ERA 1996 protects workers who make qualifying disclosures in good faith to their employer.
- The problem of good faith: Street v Derbyshire Unemployed
Workers Centre [2004] IRLR 687; Bachnak v Emerging Markets Partnership (UKEAT /0288/05/RN); GMB v Fenton [2004] WL 2935807 (unreported); and Lucas v Chichester Diocesan Housing Association Ltd (EAT 0713/04).
• Section 43C (2) ERA 1996 : workers are to be treated as having made disclosures to their employer if they follow a procedure which the employer has authorised, even if the disclosure is actually made to someone else. Brothers of Charity Services v Eleady–Cole [2002] EAT/0661/00
• S ection 43D ERA 1996: workers who seek legal advice about concerns and reveal to their adviser the issues about which a disclosure may be made are protected .
• Section 43E ERA 1996: workers in Government -appointed organisations are protected if they make a disclosure in good faith to a Minister of the Crown
• Section 43F(1) ERA 1996: workers who make disclosures in good faith to a person (or class of persons) prescribed for the purpose by the Secretary of State are protected. 1 However, the worker must reasonably believe that: (i) the matter falls within the remit of the prescribed person; & ii) the information and any allegation contained in it are substantially true. Dudin v Salisbury District Council (E.T. 3102263/03).
• Section 43G ERA 1996 : enables workers to make a protected disclosure in other limited circumstances. In order to be protected workers must: i) act in good faith; ii) reasonably believe that the information and any allegation contained in it are substantially true; iii) not act for personal gain (see below); iv) have already disclosed substantially the same information to the employer or to a person prescribed under Section 43F ERA 1996, unless they reasonably believe that they would be subject to a detriment for doing so, or that the employer would conceal or destroy the evidence if alerted; and v) act reasonably. For these purposes regard shall be had, in particular, to: (a) the identity of the person to whom the disclosure is made (for example, disclosure to an Member of Parliament may be reasonable but not to the media); (b) the seriousness of the matter; (c) whether there is a continuing failure or one likely to recur; (d) whether the disclosure is made in breach of a duty of confidentiality owed by the employer to another person; (e) any action the employer (or prescribed person) has taken or might have been expected to take in relation to a previous disclosure; (f) whether the worker has complied with any procedure authorised by the employer for making a disclosure. ALM Ltd v Bladon [2002] IRLR 807 & Smith v Ministry of Defence (E.T.1401537/04) .
• Section 43H ERA 1996 : exceptionally serious failures. I n order to be protected workers must fulfil the first three requirements of Section 43G ERA 1996 (above). In addition, the relevant failure must be of an exceptionally serious nature and it must be reasonable in all the circumstances to make the disclosure . Herron v Wintercomfort for the Homeless (ET 1502519/03 ) & Everett v Miyano Care Services Ltd (ET 3101180/00).
• Section 43L(2) ERA 1996: for these purposes a reward payable under any enactment will be disregarded. 2
• THE SCOPE AND NATURE OF PROTECTION.
• Section 47B(1) ERA 1996: “subjected to any detriment ….on the ground that”. London Borough of Harrow v Knight [2003] IRLR 140, Bolton School v Evans [2007] IRLR 140 (C/A) & Woodward v Abbey National plc [2006] IRLR 677(C/A). On vicarious liability see: Cumbria County Council v Carlisle –
Morgan UKEAT/0323/
• Section 48(3) ERA 1996: time limit and the meaning of “series of similar acts or failures”. Arthur v London Eastern Railway Ltd [2007] IRLR 58 (C/A) – a series of apparently unconnected acts could all be found to have been done “on the ground that” a protected disclosure had been made.
• Section 103A ERA 1996:
Burden of proof – Kuzel v Roche Products Ltd
UKEAT/0516/06.
Compensation - Virgo Fidelis School v Boyle [2004] IRLR 268, Lingard v HM Prison Service (ET 1802862/04)& Fernandes v Netcom Consultants Ltd (ET 2200060/00).
• SOME RECOMMENDATIONS.
• Workers should be given a positive right to report concerns
• It is inappropriate to impose a contractual duty on people to disclose wrongdoing unless proper procedures for doing so are in place and provision is made for dealing with possible reprisals (see below).
• Workers should be protected if they raise concerns about serious wrongdoing even if it does not amount to a breach of a legal obligation.
• Workers should be protected not only if they have made a protected disclosure but also if they are victimised for attempting to make such a disclosure 3 .
• Le gislation should outlaw discrimination against whistleblowers at the hiring stage.
• There should be no investigation of a person's motive for making a disclosure.
• There should be a statutory duty on employers to establish and maintain effective reporting procedures. 4 Legislation might also ensure that authoritative guidance (for example, via ACAS or CEHR) is provided about the role and contents of such procedures5.
• Union representatives should become prescribed persons under the legislation so that workers who raise concerns with them would be protected.
• Prescribed persons should be obliged to refer matters that they are not empowered to deal with to someone who is so empowered6.
• A Public Interest Disclosure Agency should be established.
• Legislation should relieve individuals of civil and criminal liability for making a protected disclosure.
• In relation to possible reprisals, those who genuinely fear adverse treatment in their employment should be entitled to seek a transfer7.
• There should be specific statutory protection against post-employment victimisation by outlawing discrimination which “arises out of and is closely connected to” the employment relationship.
8 th March 2007
Notes:
Note 1: The Schedule to the Public Interest Disclosure (Prescribed Persons)Order 1999 S.I.1549 [as amended] specifies the persons prescribed and the description of matters in respect of which they are prescribed. The Schedule includes such bodies as the Audit Commission, Commissioners of the Inland Revenue, Financial Services Authority, Health and Safety Executive and the Environment Agency.
Note 2: It is worth noting that US Federal Statutes and some State laws which provide protection for whistleblowers also encourage reports of wrongdoing by offering rewards. The qui tam lawsuit means the whistleblower brings a case on behalf of the Federal government and receives 15-30% of any payout. In 2005, whistleblowers secured over $137 million under the False Claims Act. See Callahan,E & Dworkin,T: Do Good and Get Rich: Financial Incentives for Whistleblowing and the False Claims Act. 37 Villanova Law Review 273.
Note 3: Several US State statutes protect so-called ‘embryonic whistleblowers'. See Callahan, E & Dworkin, T (2000): The State of State Whistleblower Protection. 38 American Business Law Journal 99.
Note 4: The NZ Protected Disclosures Act 2000 imposes such a duty on public sector organisations.
Note 5: On the possible ingredients of an effective procedure see Lewis, D(ed.)(2001) “Whistleblowing at Work”. ( London : Athlone Press) pp 57-69
Note 6: South Africa 's Protected Disclosures Act 2000 Section 8(2) provides that prescribed persons who are of the opinion that the matter would be more appropriately dealt with by another prescribed person, must “render such assistance to the employee as is necessary to enable that employee to comply with this section”.
Note 7: South Africa 's Protected Disclosures Act Section 4(2) & (3) provides that an employee who reasonably believes that s/he may be adversely affected on account of having made a protected disclosure “must, at his or her request and if reasonably possible or practical, be transferred …to another post” on not less favourable terms and conditions.
APPENDIX 1:
SOME DEFINITIONS OF WHISTLEBLOWING –
• Giving information (usually to the authorities) about illegal or underhand practices [Chambers Dictionary].
• Exposing to the press a wrongdoing or cover-up in a business of government office [ US , Brewers Dictionary].
• A safe alternative to silence [Public Concern at Work].
• Raising a concern about wrongdoing within an organisation or through an independent structure associated with it [ Committee on Standards in Public Life]
(Source: Public Concern at Work)
APPENDIX 2:
PIDA APPLICATIONS REGISTERED/CLAIMS ACCEPTED
[Source: Employment Tribunal Service]
1999/00 2000/1 2001/2 2002/3 2003/4 2004/5 2005/6 |
157 416 528 661 756 869 1034
|
TABLE: COMPARISON OF OUTCOMES BETWEEN PIDA AND
UNFAIR DISMISSAL CLAIMS AS THE MAIN JURISDICTION
It can be seen from the last column of the table above that 71% of PIDA cases have been
disposed of in the last three years. Comparing PIDA outcomes over this period with unfair dismissal claims, PIDA claims are:
* less likely to be ACAS settled ( by 10%)
• more likely to be withdrawn/privately settled (by 5%).
• more likely to reach a hearing (by 3%).
The proposition that public interest disclosure claims are less likely to be settled and more likely to be withdrawn and reach a hearing is not undermined when all the main jurisdictions are considered. The average % settled in all the main jurisdictions over the same period was 41%, withdrawn = 32% and ET hearings = 23%.
Comparing only sex, race and disability discrimination cases in the same period, PIDA claims are still noticeably less likely to be settled and to reach a hearing although the same % were withdrawn.
Finally, it should be noted that, over the same period, the average % of PIDA cases successful at a hearing was 6% (8% in 2005/6).