Blow the whistle - but not too loud and only certain tunes

The Public Interest Disclosure Act 1998

At long last workers have been given a degree of legal protection for whistleblowing. The Public Interest Disclosure Act came into force on 1 July 1999.

But in spite of the fanfare and trumpet blowing, the whistleblowing rights are heavily qualified - both by the type of information disclosed and to whom disclosure is made.

Who gets Protection?

In keeping with the proposals to extend employment rights beyond employees, the categories of workers protected are wide. Not just employees, but also workers and medical practitioners and work experience students. Also covered is a wide definition of agency workers.

Information Protected

Only certain types of information are protected from disclosure by the Act. There are five categories.

In each case the worker must reasonably believe the information falls into one of these categories: information about a criminal offence, failure to comply with a legal
obligation, a miscarriage of justice, health and safety or damage to the environment.

If the information falls into any of the five categories, or if the information shows a deliberate concealing of one of the five areas covered it is called a 'relevant failure'. The disclosure of a relevant failure is called a 'qualifying disclosure'. Only relevant failures can classify as qualifying disclosures, and only qualifying disclosures are capable of being protected by the Act.

Who you tell

The general rule is that a qualifying disclosure can only be made to certain people in order to give legal protection to the worker. These are the worker's employer, disclosure through a procedure authorised by the employer, or to the person the relevant failure is about, or someone who has a legal responsibility for the relevant failure. This would include, for example, informing the Health and Safety Executive of risk to individuals or to the police where the worker believes the employer has broken the law.

Workers can also make the disclosure to a Government Minister if certain government appointed bodies employs them.

There is also a route to make a qualifying disclosure to a person nominated by the Secretary of State provided the worker believes the information and any allegations in it are substantially true. The Secretary of State has yet to make an appointment so this route is not currently available.

The Act envisages that the disclosure will be in a controlled way effectively through prescribed routes. There are two circumstances when qualified disclosure can be made outside these channels.

A number of conditions have to be met however for these circumstances to apply. Once again the protection only covers disclosure of a 'relevant failure' to be a qualifying disclosure. The worker must reasonably believe in its truth and there must be no personal gain.

In addition the worker must believe either that he will be victimised if the disclosure is made to his employer or to the nominee of the Secretary of State (when one is appointed), or believe that the information would be destroyed or concealed if it was disclosed to his employer, or he has already told either his employer or the Secretary of State's nominee. Even then it also has to be reasonable for the worker to make the disclosure. A number of features including who is told and the seriousness of the allegation determine reasonable-ness. There are therefore a total of five hurdles to clear before legal protection is gained outside the usual channels.

Exceptionaly Serious Failure

The other circumstance where the usual channels are not necessary is where there is an exceptionally serious allegation. Then, the disclosure can be made even if the worker does not fear victimisation or has previously made the allegation, but the other restrictions still apply. Once again, the disclosure must be a 'qualifying disclosure', made in good faith, with a reasonable belief in the truth of the allegation, there must be no personal gain and it must be reasonable for the worker to make the disclosure.
Reasonableness is partly determined by whom the information is revealed to.

So the Public Interest Disclosure Act 1998, is not a public disclosure act except in limited circumstances. It is not envisaged that disclosure to the media will be routinely covered.

The effect of Legal Protection

If the qualifying disclosure comes within any of the categories above, it will become a protected disclosure and gain the protection given by the Act.

The Act makes any clause in an agreement, which seeks to prevent a worker from making a protected disclosure, void. It will have no legal effect and cannot be relied on by an employer. Neither can a worker sign away his or her rights from legal protection under the Act.

Workers will be protected from any detriment by the employer- whether an act or a deliberate failure to act - on the grounds that the worker has made a protected disclosure. If the worker is dismissed for the reason or principal reason of the protected disclosure, it will be automatically unfair.

There is no limit on the compensation that can be awarded by a Tribunal and there is no qualifying period or upper age limit for claiming protection from dismissal on account of protected disclosures.

But even if the Tribunal can give a full remedy to the worker there are still risks involved over the interpretation of a qualifying disclosure and the very limited circumstances when the information can be broadcast beyond the employer. Workers should be encouraged to check with their unions before making a disclosure. A disclosure made to get legal advice is covered - so union members can consult with their unions for legal advice on how to raise their concerns.

There is also scope for negotiating procedures with the employer so disclosures can be made to a third party respected by the workforce.

It remains to be seen how effective the Act will prove to be in enabling genuine concerns about irregularities to be aired and put right. The fear is that the number of obstacles in the legislation and the emphasis on raising concerns firstly with the employer, will mean that workers remain reluctant to raise legitimate concerns. But the very fact of the existence of the Act may encourage more employer accountability and openness in the workplace and have a deterrent effect.