Reports of health care workers and others being subject to discipline for reporting on the lack of PPE in the NHS have featured heavily in the press, but what are the rights of these workers and others who are speaking out about working conditions which are not following government guidelines during the coronavirus (COVID-19) pandemic.
On 23 March 2020, the government announced a period of stricter social distancing to minimise the opportunity for coronavirus (COVID-19) to spread, with people only allowed to leave home for very limited purposes. A number of businesses, including the retail and hospitality sector, closed. For others, working from home has become the norm but that is not the case for a large number of workers in health and social care, logistics, supermarkets and the construction industry.
Government guidance sets out social distancing and other measures employers should take to protect both the workforce and customers from coronavirus (COVID-19) while still continuing to trade. Employers are also under a duty to carry out a risk assessment to assess the risks of coronavirus (COVID-19) to the health, safety and welfare of workers. We have reported in this edition of LELR on the duty to provide personal protective equipment (PPE).
In large part, it has been workers who have raised the public’s awareness of the failure to ensure safe practices in the workplace, from the failure to provide enough PPE in the NHS and care homes to the failure to ensure adequate hygiene and social distancing in logistics, supermarkets, the construction industry and the public sector - varying from teachers educating key workers’ children to refuse collectors. But what protection is there for those workers who speak out?
What protection is there?
A worker who makes a protected disclosure has the right not to be subject to a detriment or dismissal. The right is set out in sections 43A to 43L and 103A of the Employment Rights Act 1996 (ERA 1996). It applies to a broad range of workers including zero hours workers, agency workers and freelancers.
In order to benefit from the protection, the disclosure must be a “qualifying disclosure” and must be made in the proper manner.
A qualifying disclosure is any disclosure of information which shows that there has been a wrongdoing and which, in the reasonable belief of the worker, is made in the public interest. It covers complaints about risks to health and safety. This includes a breach of the PPE Regulations and failures to ensure social distancing in the workplace.
A disclosure which is made to the employer or another person responsible for the wrongdoing is made in the proper manner. A disclosure can also be made to the police, government ministers and to the press in certain specified circumstances. These are, that the worker:
- must reasonably believe that the information and any allegation is substantially true and is not made for personal gain;
- must have already disclosed the information to either their employer or a prescribed person; or
- must reasonably believe that they will be subject to a detriment if they make the disclosure to the employer or prescribed person; or
- reasonably believes in the case of an employer that the materials will be concealed or destroyed.
Whether a worker acts reasonably when disclosing a complaint to the press depends on a number of factors including how the employer responded. For example, did they act promptly and did they explain how the worker’s concerns would be addressed? It will also depend on whether the worker followed the employer’s whistleblowing policy. Given these hurdles for the whistleblower, it is clear to see that complaints to the press are usually a last resort.
Reports of workers who have blown the whistle being prevented from speaking to the media, having their emails and social media accounts monitored and threatened with disciplinary action or prevented from coming into work, are all detriments to the worker which the law on whistleblowing is designed to protect.
Punishing workers in an attempt to silence them is not just unlawful it is a threat to us all. It not only puts those workers and the public at risk by restricting the dissemination of important public health information but just as important it undermines our democratic right to freedom of speech.
Freedom of speech
Protection for whistleblowers is an important aspect of the right to freedom of speech.
The right to free speech is protected in article 10 of the European Convention of Human Rights which says: ‘Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers’.
The right may be limited but only if there is a legitimate aim such as in the interests of national security, territorial integrity or public safety, for the protection of health or morals, for the protection of the reputation or rights of others or for preventing the disclosure of information in confidence but only if it is proportionate to the aim.
But can restrictions on whistleblowers be for a legitimate aim?
It is has been argued that it would be a legitimate aim to restrict whistleblowers to protect public health. The argument runs that it is scaremongering and undermines public confidence, but as George Letsas and Virginia Mantouvalou point out in their UK Labour Law blog “Is Gagging workers unlawful?” it can have the opposite effect. Knowing that there are shortages of PPE in the NHS puts greater scrutiny on the Government to address those shortages so that the public can regain their confidence in public policy on health. So the aim is neither legitimate nor proportionate.
A similar argument could apply to other workers such as delivery drivers, supermarket workers and teachers. Venting their concerns publicly that social distancing is not being followed and so putting themselves and their families at risk, raises awareness and encourages the public to maintain social distancing.
Limiting the ability of workers to speak out during the coronavirus (COVID-19) pandemic is arguably capable of being limited to protect the identity of patients. But that only applies in exceptional circumstances and even then the limitation should be proportionate.
It is vital that the ability of workers to give their account of their experiences is not limited by aims which are neither legitimate nor proportionate. Free speech, particularly in a global pandemic, provides critical information to the public. It enables all of us to understand the nature of the problem and the Government’s response to it.
As the All Party Parliamentary Group (APPG) on Whistleblowers pointed out in its report dated July 2019 “whistleblowers are the first line of defence against corruption, crime and cover-ups”. They need better protection under the legislation not less.
To read the social distancing guidance in full, go to: https://www.gov.uk/guidance/social-distancing-in-the-workplace-during-coronavirus-covid-19-sector-guidance#overview
Articles shared by Thompsons relating to coronavirus (COVID-19) are correct at the time of publication. You should check the government's guidelines for the latest information and advice at https://www.gov.uk/coronavirus.