![[Basket]](images/basket.png){kind=small}
Your order![[cover image]](images/issue/BK201507.jpg)
Whistleblowing — the Public Interest Disclosure Act 1998
[ch 4: pages 63-65]The Public Interest Disclosure Act 1998 (PIDA 98) gives workers legal protection if they raise issues of serious concern about their workplace, including safety concerns, with their employer. It provides protection against victimisation or dismissal in cases where workers “blow the whistle”. PIDA 98 sets out a series of “protected disclosures” for which a worker has protection. These are where:
• a criminal offence has been, or is likely to be, committed;
• there has been a failure to comply with a legal obligation;
• a miscarriage of justice has occurred, or is likely to occur;
• health and safety is endangered;
• the environment is, or is likely to be, endangered; or
• information on any of the above is being concealed.
A dismissal of any worker making a protected disclosure will automatically be unfair, regardless of the length of service, and they can take their case to an employment tribunal.
Former safety rep Laurie Holden won a case against train company Connex in 2002 after he was unfairly dismissed for blowing the whistle about safety. He was awarded £55,000 in compensation at an employment tribunal. The case was important because the award included a payment for aggravated damages and injury to feelings, unusual in an unfair dismissal case. He complained that he had suffered stress and had been victimised for publicising safety risks, including signals being passed at danger.
Holden v Connex South Eastern, ET 2301550/2000
In Keppel Seghers UK Ltd v Hinds [2014] IRLR 754, a health and safety consultant was found to be a “worker” under the “whistleblowing” provisions of the Employment Rights Act 1996. The judge said that the protection for whistleblowing extends “to relationships where there is no contract in existence between the parties ... and to cases where there might be no direct contract between the complainant and the user of her services but contracts between each of them and other parties, impacting upon (if not governing) their relationship.”
Important changes were made to whistleblowing law in 2013 under the Enterprise and Regulatory Reform Act 2013 (ERRA 13) . In particular, ERRA 13 introduced an extra “public interest” test, requiring whistleblowers to have a reasonable belief that their concerns were in the public interest in order to gain protection under the law. Unions and campaigners such as whistleblowing charity Public Concern at Work condemned the change, arguing that it introduces an extra layer of complexity into an already highly complex area of law.
The EAT has handed down a “pro-claimant” ruling interpreting this new public interest test, in an important new case, Chesterton Global Limited v Nurmohamed [2015] UKEAT 0335/14/0804. An issue will still be in the public interest, said the EAT, even if the claimant’s main motivation is his personal interest. Further, it is not the tribunal’s job to decide what is in the public interest. It is enough that a claimant reasonably believes the issue to be in the public interest.
Finally, although an issue will not be in the public interest if it only affects the employment contract of the individual raising the concern, it will be in the public interest, said the EAT, if it affects a group of other people (such as co-workers) as well as the whistleblower. How many other people need to be affected in order for the “public interest” test to be satisfied will depend on the facts of each case:
Mr Nurmohamed was a director of a national estate agent chain. He noticed that his bonus had fallen a lot as a result of accounting irregularities, including the under-reporting of profit. The bonuses of 100 other managers were also affected. Any prospective purchaser of the business was also affected, as they would be given a misleading impression as to its value. The disclosure was in the public interest, said the EAT. It did not matter that Nurmohamed was mainly interested in how the change had affected his own bonus.
Chesterton Global Limited v Nurmohamed [2015] UKEAT/0335/14/0804
The legislation also protects against bullying of the whistleblower by co-workers, who can be held personally liable alongside the employer. The employer will be liable even if the bullying took place without their knowledge or approval, unless they can show they took all reasonable steps to prevent the behaviour before it happened.
The Francis Report
Sir Robert Francis was commissioned to produce a report in the aftermath of the MidStaffs hospital scandal. In February 2015 he published recommendations following his Freedom to Speak Up review. These include the appointment of a Freedom to Speak Up Guardian for every NHS employer — a named person who is trusted by staff and by their leaders to listen, to advise and to facilitate getting the information to the right place to ensure that appropriate action is taken.
More information on the recommendations can be found online at: https://freedomtospeakup.org.uk/sir-robert-franciss-statement-to-the-press
In April 2015, whistleblowing protection was extended to student nurses and midwives.
Under the Small Business Enterprise and Employment Act 2015, prescribed persons (i.e. relevant regulators) are to be required to publish an annual report with anonymised details of disclosures made to them under whistleblowing laws and what action has been taken. A report published by the National Audit Office in February 2015 found that prescribed persons could do more to explain their roles and responsibilities to potential whistleblowers as raising a concern with the “wrong” prescribed person could leave the whistleblower less likely to be protected under the legislation.