Public Interest Disclosures

Key points

• Under the Public Interest Disclosure Act 1998, which came into force on 2 July 1999, any worker who makes a so-called protected disclosure has the right not to be dismissed, selected for redundancy or subjected to any other detriment (demotion, forfeiture of opportunities for promotion or training, etc) for having done so. Any term in a contract of employment or other document (such as a 'worker's contract') which purports to undermine or override a worker 's right to make a protected disclosure is null and void.

  Note

  The relevant provisions of the 1998 Act (commonly referred to as 'the Whistleblower 's Act') have been inserted as Part IVA (sections 43A to 43L) of the Employment Rights Act 1996. Provisions in the 1998 Act relating to a worker's right not to be dismissed, selected for redundancy or subjected to any detriment for making a protected disclosure are to be found in sections 47B, 103A and 105 of the 1996 Act. The latter Act is hereinafter referred to as 'the 1996 Act').

Meaning of 'qualifying disclosure'

• Section 43A of the 1996 Act defines 'protected disclosure' as meaning a qualifying disclosure, that is to say, any disclosure of information which, in the reasonable belief of the worker making the disclosure, tends to show one or more of the following:
  1. that a criminal offence has been, is being or is likely to be committed;
  2. that a person has failed, is failing or is likely to fail to comply with a legal obligation to which he (or she) is subject;
  3. that a miscarriage of justice has occurred, is occurring or is likely to occur;
  4. that the health and safety of an individual has been, is being or is likely to be endangered;
  5. that the environment has been, is being or is likely to be damaged; or
  6. that information tending to show any matter falling within any one of the preceding paragraphs has been, or is likely to be deliberately concealed.
  It is important to note the use of the word 'worker', in this context. A worker is a person who is either an employee in the accepted sense (that is to say, a person employed under a contract of employment) or a person who undertakes to do or perform personally any work or service for an employer (perhaps as a freelance operator, a trainee, a casual labourer, or agency worker). The term does not however apply to any person who is genuinely self-employed.
  
  
• A worker prompted to make a disclosure about alleged wrongdoing by (or within) the organisation for which he (or she) works may do so:
  1. to his employer (either directly or in accordance with established procedures for dealing with such allegations) or to another person whom the worker reasonably believes to be solely or mainly responsible for the alleged unlawful or criminal conduct;
  2. to a legal adviser (if made in the course of obtaining legal advice);
  3. to a Minister of the Crown (if the disclosure is made in good faith, and the worker in question is employed by a government- appointed person or public body);
  4. to the appropriate enforcing authorities (such as the Health & Safety Executive, the Commissioners of the Inland Revenue, the Environment Agency, etc (see below));
  5. (subject to certain conditions) to some other person or agency, if the disclosure relates to an exceptionally serious failure on the part of the worker's employer or some other person; or
  6. (subject to certain conditions) to some other person or agency (eg, the media, or a professional body responsible for policing standards and conduct in a particular field).

Disclosure to employer or other responsible person

• A worker may make a qualifying disclosure directly to his (or her) employer, or to some other person whom he reasonably believes to be solely or mainly responsible for the alleged wrongdoing, and will enjoy the protection available to him under Part IVA of the 1996 Act, so long as he acts in good faith (ibid. section 43C).
  
  
• If an employer has developed or authorised a simple and readily accessible procedure to encourage workers to air their concerns about alleged wrongdoing within his organisation (eg, breaches of health and safety legislation), then those procedures should be exhausted before a worker takes it upon himself (or herself to air those concerns or allegations elsewhere. He may choose, on the other hand, to present his allegations of wrongdoing directly to the appropriate enforcing authorities (so long as he does so in good faith and reasonably believes those allegations to be substantially true).
  
  
• An employer's in-house procedures for dealing with allegations of wrongdoing are unlikely to inspire confidence unless they involve other members of the workforce or workforce representatives elected or appointed by their peers to deal with such issues and make representations to their employer. A reasonable employer will, of course, respond positively to qualifying disclosures about supposed criminal activities or other wrongdoing within his organisation. So long as those disclosures were made in good faith, it would be wholly irresponsible (not to mention costly) for an employer to react by disciplining the worker or workers concerned, or by dismissing them or subjecting them to some other detriment.

Disclosure to the 'appropriate authorities'

• A worker who makes a qualifying disclosure to a prescribed person or body – such as the Health & Safety Executive, the Inland Revenue, HM Customs & Excise, the Environment Agency, the Audit Commission, the Director General of Fair Trading, and the like (see Note below) – will enjoy the protection afforded by the 1996 Act, so long as he (or she) does so in good faith and reasonably believes that the allegations of wrongdoing he is making are substantially true (ibid. section 43F).

  Note

  A list of the persons and descriptions of persons prescribed for the purposes of section 43F of the 1996 Act is to be found in the Schedule to the Public Interest (Prescribed Persons) Order 1999 and is reproduced in DTI Booklet URN 99/511 (Guide to the Public Interest Disclosure Act 1998), copies of which are available free of charge from the DTI's Publications Orderline (Telephone: 0870 1502 500).

Disclosure in other cases

• A worker who makes a qualifying disclosure to some other person or body (other than his employer or the appropriate enforcing authority) will enjoy the protection of the law, if he (or she):
  1. made the disclosure in good faith;
  2. reasonably believed that the information disclosed, and any allegation contained in it, were substantially true;
  3. did not make the disclosure for the purposes of personal gain;
  4. reasonably believed (at the time he made the disclosure) that he would have been punished, dismissed, selected for redundancy or subjected to some other detriment had he made the disclosure to his employer or to the appropriate enforcing authority;
  5. (in the absence of an appropriate enforcing authority) reasonably believed that his employer would have concealed or destroyed any incriminating evidence; or
  6. had previously made the same or a similar disclosure to his employer or the appropriate enforcing body without avail.
  Whether or not it was reasonable for the worker to have made the qualifying disclosure to a person or body other than his (or her) immediate employer (or the appropriate enforcing authority) will depend in large part on the identity of the person or body to whom the disclosure was made. An employment tribunal will also consider the seriousness of the alleged wrongdoing (and the likelihood of its happening again), whether the disclosure in question contained information in breach of the employer 's duty of confidentiality to another person (eg, a customer or client), the employer's or the prescribed enforcing authority's response (or failure to respond) to a previous disclosure of the same (or substantially similar) information, and whether, in making the same or similar allegations to his employer on a previous occasion, the worker had complied with any procedure whose use by him was authorised by his employer (ibid. section 43G).
  
  
• Challenging an employer 's failure to pay the appropriate national minimum wage, or to comply with his (or her) duties under the Working Time Regulations 1998, or to provide personal protective equipment, or for discharging toxic chemicals into the environment, or for defrauding the Inland Revenue etc, may not achieve the desired result if made directly to the person allegedly responsible for such breaches of the law, or if doing so is likely to prompt the concealment of any damaging documents or other evidence before the relevant authorities have had an opportunity to make their own assessment of the situation.
  
  
• A worker might also be concerned about the risk to his livelihood, the more so if his previous allegations on the same or a similar theme have been dismissed out of hand or 'swept under the carpet', or he has been warned 'to keep his mouth shut'. Whether influenced by such considerations or otherwise, a worker has the right to make his disclosures about alleged wrongdoing to the body, person or authority responsible for investigating and enforcing the particular law which the worker reasonably believes has been, is being or is about to be broken.

Disclosures about exceptionally serious failures

A worker who has made a qualifying disclosure (eg, to a newspaper) about an exceptionally serious failure (either by his or her employer or by some other person) will enjoy the protection afforded by the 1996 Act if, but only if, he:

• made the disclosure in good faith;
  
  
• reasonably believed that the information disclosed, and any allegations contained in it were substantially true;
  
  
• did not make the disclosure for the purposes of personal gain; and
  
  
• in the circumstances, it was reasonable for him to have made the disclosure.
  Whether or not the failure in question was exceptionally serious is a matter of fact, not of opinion. In other words, a worker's reasonable belief that a particular failure was exceptionally serious will not be enough. The failure must in fact have been exceptionally serious.
  
  
• In determining whether or not it was reasonable for the worker to have made the disclosure in question, an employment tribunal will have regard in particular to the identity of the person or organisation to whom the disclosure was made (ibid. section 43H). These requirements suggest that a worker would be well advised to obtain legal advice before making a qualifying disclosure which, if aired in the public domain, could not only undermine his right not to be dismissed or subjected to a detriment for doing so but could also lead to his being sued for defamation.

Other forms of protection

• It should be remembered that the 1996 Act offers considerable protection to employees who allege (in good faith) that their employer has infringed their statutory rights under that Act, the Trade Union & Labour Relations (Consolidation) Act 1992, or the Working Time Regulations 1998. Under the National Minimum Wage Act 1998, for example, Inland Revenue enforcement officers have the right to question workers and to act on any information supplied by those workers concerning their employer's alleged failure to pay the appropriate national minimum wage rate. There are any number of similar examples, all of which complement a worker's rights under the 'protected disclosures' provisions of the 1996 Act (eg, the right of employees under section 100 of the 1996 Act to bring to their employer's attention (by reasonable means) circumstances connected with their work which they reasonably believe to be harmful or potentially harmful to health or safety).

Complaint to an employment tribunal

• A worker may complain to an employment tribunal that he (or she) has been penalised, victimised or subjected to some other detriment for making a protected disclosure. Should the worker 's complaint be upheld, his employer will be ordered to pay him such compensation as the tribunal considers appropriate in the circumstances (including compensation for the loss of any benefit that the worker might reasonably be expected to have enjoyed) but for his employer's conduct or failure to act.
  
  
• A worker (as 'employee') who has been dismissed (or selected for redundancy) for making a protected disclosure may complain to an employment tribunal and will be awarded a substantial amount of compensation if his (or her) complaint is upheld. A worker who is not an employee in the strict legal sense, but whose detrimental treatment amounted to a termination of his contract, may likewise complain to an employment tribunal, and will also be awarded compensation if his complaint is upheld. It is as well to point out that there is no upper limit on the amount of compensation that may be awarded in such cases.
  
  
• Complaints to an employment tribunal, in the circumstances described above, must be presented within three months of the effective date of termination of an employee's contract of employment, or within three months of the alleged detrimental treatment (including, in the case of a worker who is not an employee, detrimental treatment amounting to a termination of the worker 's contract). Such complaints may be presented regardless of the worker's age or length of service at the material time.