WHISTLEBLOWING AND THE PUBLIC INTEREST DISCLOSURE ACT 1998 BY CATHERINE HOBBY
Catherine Hobby, a former practising solicitor, is a senior lecturer at the University of East London. She teaches Public Law and Employment Law and her special research interests are in the area of labour law and industrial relations. She would like to thank Hilary Lim for her valuable comments on earlier drafts of this publication and Susanna Owen for her positive criticism and support. This publication, like all publications of the Institute, represents not the collective views of the Institute but only the views of the author. The responsibility of the Institute is limited to approving its publication as worthy of consideration within the labour movement.
ISBN 1 873271 92 1 December 2001 published by the Institute of Employment Rights 177 Abbeville Road London SW4 9RL 020 7498 6919 e-mail ier@gn.apc.org www.ier.org.uk printed by Upstream (TU) 020 7207 1560 ÂŁ8 for trade unions and students ÂŁ30 others THE
INSTITUTE OF
E M PLO Y M E N T RIGHTS
contents
executive summary
iv
CHAPTER ONE
introduction
1
CHAPTER TWO
the position of whistleblowers prior to the Public Interest Disclosure Act 1998 the law of confidentiality unfair dismissal public sector workers
5 5 8 9
CHAPTER THREE
the Public Interest Disclosure Act 1998 protected disclosures internal disclosures external disclosures other external disclosures remedies
13 13 16 17 17 20
CHAPTER FOUR
whistleblowing and the PIDA
the early cases
ii
Bladon v ALM Medical Services Ltd Azmi v ORBIS Charitable Trust Fernandes v Netcom Consultants (UK) Ltd early indications
22 22 24 26 28
CHAPTER FIVE
appraisal of the Public Interest Disclosure Act 1998 38
CHAPTER SIX
the Human Rights Act 1998 conclusion
46 55
APPENDIX ONE
the Public Interest Disclosure Act 1998
60
APPENDIX TWO
key features of the Public Interest Disclosure Act 1998
68
further sources of information
72
references
73
endnotes
76
recent Institute publications
82
contents
APPENDIX THREE
iii
executive summary
I British industrial relations preserve a culture of secrecy. There is an inherent danger within all organisations that malpractice and wrongdoing may occur. Recent inquiries into disasters and scandals have shown that workers will often be the first to be aware of such transgressions, but they maintain silence or raise their concerns only to be ignored or disciplined. The growing awareness of the value of worker knowledge and the publicity surrounding the treatment of certain whistleblowers led to a campaign to introduce legislation to protect workers who blew the whistle. The Public Interest Disclosure Act 1998 came into force on 2 July 1999 and with its enactment organisations that ignore the concerns of their workers risk substantial damages and courting bad publicity.
whistleblowing and the PIDA
I Despite its protective provisions it appears many workers feel unable to freely express their concerns at work.
iv
I Those workers who disclose information concerning wrongdoing within their organisations are feared and punished and in the past the courts have failed to protect whistleblowers against the anger of employers. All employees are under a duty of confidentiality and there is a public as well as private interest in enforcing that duty. While the duty is subject to a public interest exception the circumstances in which the exception will operate are unclear. Prior to the enactment of the Public Interest Disclosure Act 1998 the unfair dismissal provisions offered little protection to those workers who blew the whistle. Whistleblowers were not always afforded equal treatment and public sector workers were particularly vulnerable if they raised concerns. Civil servants and those in the intelligence and security services were also restrained by the Official Secrets Act 1989.
I The Public Interest Act 1998 provides employment protection to whistleblowers against dismissal and victimisation if they make a ‘protected disclosure’ within limited statutory requirements. The emphasis is on internal disclosures and workers must be acting in good faith. Any information disclosed by a worker in seeking legal advice will be protected. Disclosures to certain prescribed organisations are permitted provided the worker reasonably believes the disclosure falls within the remit of the body and the information disclosed is substantially true. The provisions regarding external disclosures to other bodies have to satisfy additional hurdles and these sections are complex. However, in setting out strict statutory guidelines the 1998 Act limits judicial discretion. I A disclosure to a trade union is not specifically protected under the Public Interest Disclosure Act 1998. Though a disclosure may be protected if a union is recognised and the disclosure is made to it as part of a procedure authorised by an employer. Despite this limitation a union can still play an important role by raising worker awareness of the 1998 Act and in presenting clear guidance, such as that offered by Unison, to those who are considering raising concerns internally or externally.
I The Public Interest Disclosure Act 1998 has been widely welcomed, but the welcome has come with reservations. There is no obligation on an employer to implement a whistleblowing procedure or to heed the concerns of workers. The necessity of a worker disclosing in good faith is problematic and the complexity of the provisions of the 1998 Act does not aid understanding. Limited publicity has been given to the Act and it is unclear whether there is widespread understanding of its provisions. Significant hurdles are placed in the way of external disclosures that may require public comment. There is an exhaustive list of information that qualifies for protection without the flexibility of a final catch-all category. The focus of
executive summary
I Decisions are beginning to be handed down by employment tribunals and several significant cases show the potential of the Public Interest Disclosure Act 1998. In each case the complainant successfully argued they had been dismissed for making a protected disclosure and in one case the whistleblower was awarded ÂŁ293,441 in damages. The cases provide some guidance in the possible argument of cases and also highlight the importance of implementing effective whistleblowing policies. They also demonstrate the limitations of the 1998 Act.
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the 1998 Act is upon individual and internal disclosures with little recognition of the collective concerns of workers and the role of trade unions in the expression of workers’ fears. I The provisions of the Public Interest Disclosure Act 1998 must be read with the Human Right Act 1998, which requires judges to interpret legislation with regard to certain human rights provided by the European Convention on Human Rights. The Convention provides individuals with a right to freedom of expression, but this right is not absolute and cannot be used to override legislation. The Human Right Act 1998 also places a public authority under a duty to act in a way that is compatible with free expression. Though, it should be noted that this right must be balanced against the employer’s right to privacy.
whistleblowing and the PIDA
I Prior to the Public Interest Disclosure Act 1998 the law did not offer real protection to a worker who exposed wrongdoing in the workplace. There are now remedies to those who are victimised or dismissed for raising concerns. Though, it is not certain that the Act will change the culture of work so that a worker feels secure in speaking out. A worker considering blowing the whistle should be fully informed as to the likely consequences of disclosure and any remedy available in respect of action taken in retaliation by their employer. Cases under the 1998 Act should be monitored in order to fully understand its impact and trade unions should promote understanding of its provisions amongst their members.
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The Institute of Employment Rights was launched on 28th February 1989. As a labour law “think tank”, supported by the trade union movement its purpose is to provide research, ideas and detailed argument. In 1994 the Institute was granted charitable status. The Institute has attracted wide and distinguished support. Among the membership are John Hendy QC, Professor Keith Ewing, Lord McCarthy and the general secretaries of Britain’s largest trade unions. The results of the work of the Institute are published in papers and booklets. It also provides short articles, free of legal jargon, for trade union journals and other publications. The Institute provides tools of analysis and debate for the trade union movement in the area of labour law. We are not a campaigning organisation. The Institute does not assume that legal measures can offer ultimate solutions for political, economic and social problems. However, it recognises that law has a part to play in influencing the employment relationship, both individually and collectively. Funding is from various sources, including subscriptions which entitle subscribers to a copy of all our new publications. If you are interested in subscribing or would like to know more about the Institute, then contact us at 177 Abbeville Road, London SW4 9RL, 020 7498 6919.
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WHISTLEBLOWING AND THE PIDA 1998
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