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WHISTLEBLOWING
The Public Interest Disclosure Act 1998 protects workers who
'blow the whistle' about wrongdoing. It makes provision about
the kinds of disclosures which may be protected; the circumstances
in which such disclosures are protected; and the persons who
may be protected.
Persons who may be protected by the new provisions against
unfair dismissal or being subjected to detriment
The provisions introduced by the Public Interest Disclosure
Act 1998 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.
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; or
- 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.
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.
Circumstances
in which disclosures are protected (a "protected
disclosure")
Making a qualifying disclosure to the employer
or via internal procedures
A qualifying disclosure will be
a protected disclosure where it is made:
(a) to the worker's
employer, either directly to the employer or by procedures
authorised by the employer for that purpose;
or
(b) 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.
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.)
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
employer.
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. However, from 1 October 2004, with the introduction
of statutory dismissal, disciplinary and grievance procedures,
the time limit will be extended, for claims made by employees,
in specified circumstances connected with those procedures.
The tribunal can also consider a complaint made outside the
three-month time limit (either by an employee or by a 'worker'
) if they believe it was not reasonably practicable for the
employee to have made the complaint within it and that it
has
been made within such further period as they consider reasonable.
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.
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