Speaking out – when is an employee’s disclosure protected?

Posted by Amanda Okill

Senior Associate

Are employees who ‘blow the whistle’ protected in situations where the substance of their disclosure is not in the public interest?

It would appear not. As of 25th June 2013 employees who blow the whistle must be able to show that they genuinely believe the disclosure to be in the public interest.

The Public Interest Disclosure Act 1998 (PIDA) was originally introduced by means of a private members bill following a number of high profile disasters, including the Clapham Rail Disaster in 1988 and the Zeebrugge disaster in 1987. Its aim was to protect workers who had identified dangers posed by their employer but who had been too afraid to blow the whistle and speak out.

The broad consensus of those lobbying for the legislation was that it was a necessary measure to protect the public. In summary, PIDA aimed to protect workers who reported any of the following; a criminal offence, a miscarriage of justice, a failure to comply with a legal obligation, an endangerment of health and safety, damage to the environment, or concealment of any of the above. PIDA afforded workers protection against dismissal and/or detriment for blowing the whistle. Where the employee was dismissed, their compensatory damages were uncapped.

Since its introduction in 1998 one of the criticisms of PIDA has been that instead of being used as a means to protect workers who spoke out expressing genuine concerns about a potential danger to the public, it has instead been seized on by employees fighting to protect their own rights in the workplace, including those embroiled in bonus payment disputes with their employer. City bankers, for example, have been able to claim that the raising of concerns about the non-payment or underpayment of a bonus amounted to a protected disclosure on the basis that the employer failed to comply with its legal obligations to them.

The Enterprise and Regulatory reform Act 2013 recently introduced a number of changes to the legislation on whistleblowing including a requirement for the disclosure to be in the public interest.

However, the meaning of ‘public interest’ has not been defined, and this is an issue which could result in some litigation in the future. Employers, particularly larger organisations, should still be aware that until such time as the issue is clarified, it would not be wise to be too complacent and undervalue complaints of unlawful conduct by breach of conduct.

While the breach of an individual’s contract is, generally speaking, unlikely to be in the public interest, the situation may be different in the case of a public sector employee. Complaints about a breach of contractual terms affecting a number of public sector staff, perhaps terms which have been negotiated collectively and agreed with a recognised Union, for example, could still fall in the public interest. This is more likely where the impact of the breach is widespread. Here tribunals could take a broad approach.

In the meantime, employers are advised to revisit their internal policies redefining ‘whistleblowing,’ making it clear that disclosures need to be in the public interest to qualify for protection and that individual complaints should be dealt with via the internal grievance procedure.

 


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