Whistle blowing Update
“Whistle blowing” is a term for what is known legally as a Public Interest Disclosure. The term is used when a member of staff raises a concern about a possible risk, wrong-doing or malpractice that has a public interest aspect to it, usually because it threatens others; for example, patients, colleagues or members of the public.
There have been a number of recent high-profile cases, notably in the NHS, and also some involving “gagging” clauses. To some, whistle blowers are public interest martyrs; to others they are merely sneaks pursuing their own personal glory.
Stuart Chamberlain, Croner author and employment law consultant, looks at the topic of whistle blowing, examines its framework — the Public Interest Disclosure Act 1998 (“PIDA”) — and at government proposals to amend the whistle blowing regime.
What does the Public Interest Disclosure Act 1998 do?
The Act was introduced to protect workers from detrimental treatment or victimisation by their employer when, in the public interest, they raise a concern (“blow the whistle”) internally or to a prescribed regulator.
The Act protects workers as follows.
- If an employee is dismissed because they have made a protected disclosure, then that will automatically be treated as unfair dismissal — there is no qualifying service to bring such a claim.
- In any event, workers are given a right not to be subjected to any “detriment” (i.e. disadvantaged) by their employers on the ground that they have made a protected disclosure.
Compensation limits for unfair dismissal of employees do not apply to whistle blowing cases. The Tribunal may also make an award for “injury to feelings”. Another special protection enjoyed by whistle blowers is the grant of interim relief — this is where the tribunal issues a mandatory injunction that keeps the contract of employment alive pending the hearing of the claim. The tribunal can rule that the employee be reinstated.
The Coalition Government has proposed a number of reforms to the legislation. These are summarised at the end of this article.
Who does the Act cover?
The Act protects most workers (not just employees) in the public and private sectors. The Act does not apply to the genuinely self-employed (other than in the NHS), voluntary workers (including charity trustees and charity volunteers), police officers or the intelligence services.
Nevertheless, “good practice” suggests that a whistle blowing policy (see below) should apply to all those who work — whether they are full-time or part-time, self-employed, employed through an agency or a volunteer.
A worker may rely on a protected disclosure even after employment with the particular employer has ended. The Court of Appeal ruled in Woodward v Abbey National plc  EWCA Civ 822 that the legislation covers not only employees but also ex-employees. In Onyago v Berkeley Solicitors  UKEAT/0407/12 the EAT confirmed that the legislation did not limit the whistle blower‘s protection to disclosures during the relevant employment.
What type of disclosures will be protected?
For a disclosure to be protected by the Act’s provisions, it must relate to matters that “qualify” for protection under the Act. “Qualifying disclosures”, therefore, are disclosures of information by a worker about one or more of the following.
- A criminal offence.
- The breach of a legal obligation, including a legal obligation that arises from a contract of employment (Parkins v Sodexho  IRLR 109. However see the government intentions for reforming the PIDA below).
- A miscarriage of justice.
- A danger to the health and safety of any individual.
- Damage to the environment.
- Deliberate concealment of information tending to show any of the above five matters.
What is a protected disclosure?
A qualifying disclosure will be a “protected” disclosure provided the worker makes it in “good faith” to the employer or the person who has legal responsibility for the issue. Disclosure may also be made to a person referred to in the 1998 Act as a “prescribed person”. Disclosures made for personal gain or ulterior motive are not generally protected.
The Public Interest Disclosure (Prescribed Persons) Amendment Order 2003 set out around 50 “prescribed persons”. These include: the Audit Commission; the Information Commissioner; HM Revenue & Customs; Environment Agency; Health and Safety Executive (HSE); Financial Services Authority; Pensions Regulator; the director of the Serious Fraud Office; the Charity Commissioners; plus the Secretaries of State for Business, Transport and for Innovation and Skills.
As long as the employee or worker has a reasonable belief that the information disclosed is substantially true, it does not actually have to be true (Darnton v University of Surrey  IRLR 133), although the determination of the factual accuracy of a disclosure may be important for an employment tribunal in assessing whether the employee or worker holds a reasonable belief.
From 6 April 2010, employment tribunals can pass to the appropriate regulator allegations made in an ET1 claim that the claimant has suffered a detriment or been dismissed. This is to encourage claimants to pass information to the relevant regulator.
Is a whistle blower ever justified in bypassing the disclosure procedures?
Whistle blowers may disclose information more widely, e.g. to the police, media, MPs and non-prescribed regulators. Such a disclosure is protected if, as before, it is made in good faith and not for personal gain (including any payment by the media), it is reasonable in all the circumstances; and the whistle blower reasonably believes that the information and any allegations in it are substantially true.
In addition, the disclosure must fit any one of the following three criteria.
- The disclosure had already been raised internally or with a prescribed person.
- The whistle blower reasonably believed that they would have been victimised had he or she raised the matter internally or with a prescribed regulator.
- The whistle blower reasonably believed a complaint would lead to the evidence being concealed or destroyed and there was no prescribed person.
In certain circumstances (known as “exceptionally serious” cases), the worker may also bypass the accepted procedures.
Can a contractual clause prevent a disclosure?
No confidentiality clauses are unenforceable if they are used to try to stop a protected disclosure.
Nevertheless, a common practice in the NHS (and other organisations) was to silence whistle blowers by including “gagging” clauses in their severance packages. On 14th March 2013, however, the Health Secretary announced that such “gagging” clauses, which prevented NHS staff from speaking out about patient care and safety, would be banned by the Government with immediate effect. It is reported that in the last three years some £14.7 million has reportedly been spent on almost 600 “compromise agreements” for departing NHS staff — 90% of which had “gagging” clauses in the agreements.
What are good whistle blowing procedures?
It is good practice for employers to have a separate whistle blowing policy, which sets out appropriate procedures. It means that workers and employees know what is expected of them and encourages transparency and openness at work. It is best to separate this policy from the grievance policy, which deals with individual concerns.
Staff should be offered confidentiality when raising a matter as a disclosure and even access to an independent helpline offering confidential advice.
Importantly, the policy should make clear that it will be a disciplinary matter:
- to victimise a bona fide whistle blower, and
- for someone to maliciously make a false allegation.
A worker may lose the protection of the legislation if they ignore any internal policy.
Proposed Government reforms
The Government has proposed a number of changes to the whistle blowing regime in the Enterprise and Regulatory Reform Bill. These include:
- introducing a requirement that the disclosure must, in the worker’s reasonable belief, be in “the public interest” — this will mean that the Act will no longer apply to a disclosure of a breach of an employee’s contract of employment
- removing the “good faith” requirement for a disclosure to qualify as protected, but reducing compensation by up to 25% where a disclosure was not in good faith, and
- making employers vicariously liable for detriments by fellow workers, subject to the normal statutory defence — this will overrule the Court of Appeal’s decision in NHS Manchester v Fecitt  EWCA Civ 1190 that the employer cannot be vicariously liable where an employee has committed a wrong.
The definition of “workers” under the 1998 Act will also be extended to include job applicants, thus preventing the blacklisting of jobseekers who have made protected disclosures against previous employers.
The Government has consistently expressed disquiet at the unintended reach and effect of the whistle blowing legislation. The reforms in the Enterprise and Regulatory Reform Bill (particularly the emphasis on “the public interest”) are intended to close loopholes in the current law. The Government quotes the increase in whistle blowing cases (from 157 in 2000 to 1761 in 2009) as the result of litigation based on breach of employment contracts.
Public Concern at Work, the leading whistle blowing charity that monitors the operation of the 1998 Act, questions the need for the reforms. It regards them as merely “policy on the hoof” and believes that the emphasis on “public interest” will act as an obstacle to genuine and honest whistle blowers who will have to show that their concern is in the public interest.
Finally, it is understood that the Government, nervous about the public response to the Mid-Staffordshire Foundation Trust Public Inquiry, is particularly concerned about the Trust’s use of gagging clauses against hospital staff and is contemplating a wider consultation on the whistle blowing regime and whether it is “fit for purpose”. The results of such a consultation will make interesting reading.