PERSONS WHO MAY BE PROTECTED BY THE PROVISIONS OF THE LAW ON WHISTLEBLOWING
The provisions introduced by the Public Interest Disclosure Act 1998 and now contained in the Employment Rights Act 1996 (as amended) protect most workers from being subjected to a detriment by their employer. Detriment may take a number of forms, such as denial of promotion, facilities or training opportunities which the employer would otherwise have offered. Employees who are protected by the provisions may make a claim for unfair dismissal if they are dismissed for making a protected disclosure. Workers who are not employees may not claim unfair dismissal; however, if their contract has been terminated by the employer because they made a protected disclosure, they may instead make a complaint that they have been subjected to a detriment.
Subject to some limited exceptions, the new provisions protect persons who work under contracts of employment; those who work personally for someone else (under a “worker’s” contract) but are not genuinely self-employed; homeworkers; certain agency workers; National Heath Service practitioners such as GPs, certain dentists, pharmacists and opticians; and certain categories of trainees.
WHAT CAN BE DISCLOSED? QUALIFYING DISCLOSURES
Certain kinds of disclosures qualify for protection (“qualifying disclosures”). Qualifying disclosures are disclosures of information which the worker reasonably believes tend to show one or more of the following matters is either happening now, took place in the past, or is likely to happen in the future
a criminal offence;
the breach of a legal obligation;
a miscarriage of justice;
a danger to the health or safety of any individual;
damage to the environment;
deliberate covering up of information tending to show any of the above five matters.
It should be noted that in making a disclosure the worker must have reasonable belief that the information disclosed tends to show one or more of the offences or breaches listed above (‘a relevant failure’). The belief need not be correct – it might be discovered subsequently that the worker was in fact wrong – but the worker must show that he held the belief, and that it was a reasonable belief in the circumstances at the time of disclosure.
DISCLOSURES ABOUT WRONGDOING IN THE UNITED KINGDOM OR OVERSEAS
Protection under the provisions applies even if the qualifying disclosure concerns a relevant failure which took place overseas, or where the law applying to the relevant failure was not that of the United Kingdom.
DISCLOSURES THAT INVOLVE AN OFFENCE
Disclosure of information by a worker is not a qualifying disclosure if in making it he commits an offence (eg, if disclosure was prohibited under the Official Secrets Act 1989).
DISCLOSURES AND LEGAL PROFESSIONAL PRIVILEGE
A disclosure of information, which would be protected from disclosure because of legal professional privilege, cannot be a qualifying disclosure if made by the legal adviser (or, say, a typist in the adviser’s office) to whom the information was disclosed in the course of obtaining legal advice.
MAKING A QUALIFYING DISCLOSURE TO THE EMPLOYER OR VIA INTERNAL PROCEDURES
A qualifying disclosure will be a protected disclosure where it is made:
to the worker’s employer, either directly to the employer or by procedures authorised by the employer for that purpose; or
to another person whom the worker reasonably believes to be solely or mainly responsible for the relevant failure.
The only additional requirement on the worker is that he should act in good faith. No other requirement is necessary to qualify for protection. Disclosure to the employer will in most cases ensure that concerns are dealt with quickly and by the person who is well placed to resolve the problem. In some small companies, this may be the employer himself. But often an authorised procedure will be helpful. An existing company procedure may suffice, or such procedures could perhaps be adapted, for example to facilitate confidential disclosures by workers. Internal procedures that are simple to use, readily accessible and which workers are encouraged to use are more likely to result in disclosure of concerns to the employer first, rather than externally. Employers will wish to consider the best way to secure trust and confidence in such procedures to ensure that they will be used, perhaps by involving the workforce, or their representatives.
MAKING A QUALIFYING DISCLOSURE TO A PRESCRIBED PERSON
Workers who are concerned about wrongdoing or failures can make disclosures to a person or body which has been prescribed by the Secretary of State for the purpose of receiving disclosures about the matters concerned. If a worker makes a qualifying disclosure to such persons, it will be a protected disclosure provided the worker:-
makes the disclosure in good faith;
reasonably believes that the information, and any allegation it contains, are substantially true; and
reasonably believes that the matter falls within the description of matters for which the person or body has been prescribed. (For example, breaches of health and safety regulations can be brought to the attention of the Health and Safety Executive or appropriate local authority, or environmental dangers can be notified to the Environment Agency.)
A list of prescribed persons, the description of matters for which they are prescribed and contact details can be obtained from the DTI website whose link can be found on our home.
MAKING A QUALIFYING DISCLOSURE TO A LEGAL ADVISER
A qualifying disclosure will be a protected disclosure if it is made to a legal adviser in the course of obtaining legal advice. There are no further conditions attached.
MAKING A QUALIFYING DISCLOSURE TO A MINISTER
A qualifying disclosure made in good faith by a worker, employed in a Government-appointed organisation, such as a non-departmental public body, will be a protected disclosure if made to a Government Minister (either directly or via departmental officials).
MAKING A QUALIFYING DISCLOSURE ABOUT AN EXCEPTIONALLY SERIOUS FAILURE
A qualifying disclosure made about a relevant failure which is exceptionally serious will be a protected disclosure if the worker:-
makes the disclosure in good faith;
reasonably believes that the information disclosed, and any allegation contained in it, are substantially true; and
does not act for personal gain.
Also, it must be reasonable for the worker to make the disclosure in view of all the circumstances, having regard in particular to the identity of the person to whom the disclosure is made.
Note that the relevant failure must be exceptionally serious. This will be a matter of fact, and not simply a matter of the worker reasonably believing it to be exceptionally serious.
MAKING A QUALIFYING DISCLOSURE MORE GENERALLY
A qualifying disclosure will be a protected disclosure if the following conditions are met:
Firstly, the worker must:-
make the disclosure in good faith;
reasonably believe that the information, and any allegation contained in it, are substantially true; and not act for personal gain.
In addition, one or more of the following conditions must be met:
the worker reasonably believed that he would be subjected to a detriment by his employer if disclosure were to be made to the employer or to a prescribed person;
in the absence of an appropriate prescribed person, the worker reasonably believed that disclosure to the employer would result in the destruction or concealment of information about the wrongdoing;
the worker had previously disclosed substantially the same information to his employer or to a prescribed person.
Finally, it must be reasonable for the worker to make the disclosure. The employment tribunal will decide whether the worker acted reasonably, in all the circumstances, but in particular will take into account:
the identity of the person to whom the disclosure was made (eg, it may be more likely to be considered reasonable to disclose to a professional body that has responsibility for standards and conduct in a particular field, such as accountancy or medicine, than to the media);
the seriousness of the relevant failure;
whether the relevant failure is continuing or is likely to occur again;
whether the disclosure breaches the employer’s duty of confidentiality to others (eg, information that is made available by the worker may contain confidential details about a client);
what action has or might reasonably be expected to have been taken if a disclosure was made previously to the employer or a prescribed person; and
whether the worker complied with any internal procedures approved by the employer if a disclosure was made previously to the employment.
DISCLOSURES ABOUT HEALTH AND SAFETY MATTERS
The Employment Rights Act 1996 already provides protection for employees who, in certain circumstances, raise concerns about, or take action in connection with, health and safety matters (see sections 44 and 100 of that Act). For example, the 1996 Act already provides that it would be unfair to dismiss an employee who acts to protect himself or others from serious and imminent danger.
The new provisions provide protection, as explained above, to any worker who discloses information about a health or safety danger in accordance with the provisions. Clearly, where there is a recognised health and safety representative present, the worker should normally tell them about the problem, as it is part of the representative’s role to raise such matters with the employer. The existing health and safety provisions in the Employment Rights Act 1996 and the new provisions introduced by the Public Interest Disclosure Act 1998 are therefore complementary.
CONTRACTUAL DUTIES OF CONFIDENTIALITY
Any provision in an agreement between a worker and his employer which would prevent the worker from making disclosures protected by the new provisions is void. This applies to any agreement between the employer and worker (it might be a term in a contract of employment or a separate agreement), including agreements settling claims under the new provisions.
EMPLOYMENT TRIBUNALS AND REMEDIES
Workers protected by the provisions (including employees) can complain that they have been subjected to detriment by their employer for making a protected disclosure. As noted earlier, an ’employee’ can make a claim of unfair dismissal; a ‘worker’ who is not an employee and whose contract has been terminated by his employer because he made a protected disclosure can claim that he has been subjected to a detriment.
As with many other claims to employment tribunals, the complaint should normally be made within three months of the dismissal or detriment. For unfair dismissal claims, interim relief is also available, provided the claim is made within seven days of the effective date of the termination of employment.
Where a tribunal finds that a complaint of unfair dismissal is justified, it will order re-instatement or re-employment, or the payment of compensation. Where a worker complains that he has been subjected to a detriment and the tribunal finds the complaint well-founded, it will make a declaration to that effect and may order the payment of compensation.
If you feel you have been unfairly dismissed, treated unfavourably because of a protected disclosure or victimised therefor, contact us now for immediate advice.
If you are an employer and you need legal advice about the issues above contact THE PINNACLE PARTNERSHIP now!