Blowing the whistle
Labour & European Law Review Weekly Issue 452 13 January 2016
The House of Commons Library has just produced a useful overview of the protection available to workers who blow the whistle under the Public Interest Disclosure Act (PIDA) 1998.
PIDA came into force in July 1999 in order to protect workers who disclose information about malpractice at their workplace (or somewhere they used to work), provided that certain conditions are met about the nature of the information that they want to disclose and the person to whom the disclosure is made. If these conditions are met then a whistleblower is protected from suffering a detriment. If, however, the conditions are not met, the disclosure may be viewed as a breach of the worker’s duty of confidence to their employer.
In order to succeed, the worker has to show that they are making a “qualifying disclosure” which, in the reasonable belief of the worker making the disclosure, is made in the public interest and tends to show that:
- a criminal offence has been committed, is being committed or is likely to be committed,
- a person has failed, is failing or is likely to fail to comply with any legal obligation to which he or she is subject
- that a miscarriage of justice has occurred, is occurring or is likely to occur,
- that the health or safety of any individual has been, is being or is likely to be endangered, or
- that the environment has been, is being or is likely to be damaged.
There are number of permitted methods for disclosure including the following:
- Disclosure to the worker’s employer
- Disclosure to another responsible person (an example may be an agency worker raising a concern with the organisation hiring him/her)
- Disclosure made in accordance of obtaining legal advice
- Disclosure to a Minister of the Crown (this protects workers in government appointed bodies)
- Disclosure to prescribed persons as set out in statute
- Disclosure in accordance with section 43G of the Employment Rights Act 1996 which can if specific conditions are met protect those who disclose to the press
- Disclosure of an exceptionally serious failure
If a worker is subjected to a disadvantage by their employer for blowing the whistle, the worker can bring a tribunal claim within three months of the act (or failure to act) complained of.
Finally the briefing also looks at the law governing gagging clauses in employment contracts, making clear that they are unenforceable if they try to stop a worker from making a protected disclosure.
To access the briefing, go to: http://researchbriefings.parliament.uk/ResearchBriefing/Summary/CBP-7442#fullreport