Whistleblowing — the Public Interest Disclosure Act 1998


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. Successful cases are rare.


In Keppel Seghers UK Ltd v Hinds [2014] IRLR 754, a health and safety consultant who was required to provide his services via a personal service company was found to be a “worker” entitled to protection under the “whistleblowing” provisions of the Employment Rights Act 1996 (section 43K(1)(a), ERA 96). The judge said that the protection for whistleblowing extends further than the protection available to workers in other contexts (such as working time or national minimum wage rights). Whistleblowing protection 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, the ERRA 13 introduced an extra “public interest” test, requiring whistleblowers to have a reasonable belief that their concerns are in the public interest in order to gain protection under the law. Unions and campaigners such as expert 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.


In 2015, the EAT handed down a “pro-claimant” ruling interpreting this new public interest test, in Chesterton Global Limited v Nurmohamed [2015] UKEAT 0335/14/0804. An issue can 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:


The Court of Appeal is expected to rule on whether the EAT’s interpretation is the correct one during 2016. In the meantime, in Morgan v Royal Mencap Society [2016] IRLR 428, the claimant complained to her employer about cramped working conditions at the charity where she worked. She believed these conditions were a danger to her health and safety and would shock the public if they knew about them. Allowing her appeal against an employment tribunal finding that this was not a matter of public interest, the EAT judge confirmed that the correct question is not whether a disclosure is actually in the public interest, but rather whether the worker reasonably believes that this is the case.


Another new ruling, in the case of Day v Lewisham and Greenwich NHS Trust [2016] IRLR 415, looked at who can make a protected disclosure. In this case, junior hospital doctor Chris Day complained about patient safety at the Queen Elizabeth hospital, where he worked under a contract of employment with Lewisham NHS Trust (the Trust), and also to Health Education England (HEE), with which he had a training contract. HEE had placed him at the hospital and were responsible for paying a large part of his salary. Day maintained that as a result of his actions, alleging that staff shortages were putting patient safety at risk, he was detrimentally treated by HEE. His claim failed because HEE was not an employer, and because he did not come within the extended definition of a “worker” under the Employment Rights Act 1996. Since he was employed by the Trust, he could not claim against HEE.


Kilraine v London Borough of Wandsworth [2016] IRLR 422 involved allegations of bullying and harassment. The case turned on the meaning of a “qualifying disclosure”. In it, the judge cautioned against applying a principle based on the 2010 case of Cavendish Munro Professional Risks Management v Geduld. In Cavendish, the EAT had ruled that an allegation of wrongdoing which does not disclose information cannot be a protected disclosure. In Kilraine, the EAT clarified that the legislation does not distinguish between information and allegations. The correct question is simply whether information is disclosed, whether or not that information is also an allegation. In practice, information is often intertwined with allegations but this does not stop it being protected. Even so in this case, the claim failed because the alleged disclosure of bullying and harassment was too vague.


The whistleblowing 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.


Whistleblowing law is extremely complicated. Anyone contemplating ‘blowing the whistle’ should first contact expert charity Public Concern at Work (www.pcaw.co.uk). As well as a website, the charity runs a Whistleblowing Advice Line: 020 7404 6609.