Whistleblowing at work

In the late 1980s and early 1990s a series of disasters shocked the nation. Events that particularly haunted the collective imagination included the rolling over of the ferry Herald of Free Enterprise in Zeebrugge harbour, Belgium, the Piper Alpha oil rig disaster, and the train collision at Clapham Junction.

Cutting corners on maintenance and safety, often in the pursuit of ever increasing profits, led to catastrophic loss of life. Tragically, reports into these disasters found that steps could easily have been taken to prevent their occurrence. Some employees had been aware of the failings which were at the root of the disasters. A number of the employees, knowing how whistleblowers could be dealt with, were even brave enough to have raised their concerns with management in advance — obviously to no avail.

For example, the enquiry into the Herald of Free Enterprise disaster established that some staff had complained that ferries were powering out of Channel harbours before the bow doors of ferries had been closed. In fact, concern was raised about this by employees internally on five occasions.

Unfortunately, within the operator’s organisation, those concerns were not acted upon. It was thought by many that these warnings were ignored because it was believed that even the courageous individuals who raised their concerns internally were unlikely to raise their concerns externally in case they lost their jobs.

The realisation that these disasters were entirely preventable, coupled with the shock of the events themselves, prompted Parliament to respond. However, it wasn’t the Conservative government in power at the time that brought forward legislation. It took an individual member of Parliament — Richard Shepherd to introduce a Bill on whistleblowing, which when it became law was called the Public Interest Disclosure Act 1998 (PIDA).

The 1998 Act sets out the type of disclosures which an individual can legally make without suffering a detriment. Controversially, the second type of disclosure listed was found to include disclosures about a breach of employment regulations in the case of Parkins v Sodexho Ltd EAT/1239/00.

However, clause 14 of the Enterprise and Regulatory Reform Bill, which the government is currently steering through Parliament, will reverse the impact of this decision by introducing a requirement for the whistleblower to have reasonably believed that their disclosure was “in the public interest”.

Unfortunately, the impact of the “in the public interest test” may be to make bringing a claim harder, rather than just excluding private contractual claims.

It is significant that the wrongdoing does not have to have occurred at the time of the disclosure — it need only be likely to occur. The term “likely” requires more than a possibility or a risk that an employer might fail to comply with a relevant legal obligation. That is to say, the information which is the subject of a disclosure should, in the reasonable belief of the employee at the time, tend to show that it is more probable than not that the employer will fail to comply with a legal obligation on it. The authority for this is the decision in Kraus v Penna plc EAT/0360/03.

It is not just employees whose disclosures can entitle them to be protected from suffering a detriment. PIDA’s protections can also be extended to ex-employees. Following the decision of the Court of Appeal in Woodward v Abbey National plc [2006] EWCA Civ 822, some workers performing services personally, apprentices, some agency workers and even some trainees on work experience programmes are also covered.

Also, any attempt by an employer to contractually limit an individual’s ability to blow the whistle on some wrongdoing will be void. Specifically, the inclusion of a confidentiality clause in a contract will not lawfully prevent a disclosure from taking place.

PIDA protection

The whistleblower does not have to be correct that wrongdoing has occurred, is occurring or is likely to occur. In fact, the worker will be protected by PIDA irrespective of whether they are right or wrong about the occurrence of the issue complained of. They will also be protected if the wrongdoing they believe has happened does not amount to a criminal offence. However, to be protected by the Act, the individual’s belief that wrongdoing has occurred, is occurring or is likely to occur must be objectively reasonable. The authority for this is the decision in the case of Babula v Waltham Forest College [2007] EWCA Civ 174.

In assessing whether the worker’s belief was objectively reasonable, the factual basis of the disclosure remains significant. An employment tribunal presented with a PIDA claim should examine the factual accuracy of the disclosure and then go on to assess whether the worker had held a reasonable belief that the disclosure tended to show that a criminal offence etc had occurred. Workers making disclosures must therefore be careful to document the wrongdoing that forms the basis of their disclosure. Where an employer can successfully argue that the facts that formed the basis for a disclosure are untrue, the worker is unlikely to gain the protection of PIDA. The authority for this is the decision in Darnton v University of Surrey [2003] ICR 615.

In order to be protected by PIDA, a qualifying disclosure must, except in exceptional circumstances, be made to the individual’s employer or appropriate third party. An appropriate third party includes someone that the whistleblower reasonably believes has legal responsibility for preventing the wrongdoing as was ruled in Premier Mortgage Connections Ltd v Miller EAT/0113/07.

The definition of employer covers a more senior colleague who has managerial responsibility over the whistleblower. However, the disclosure must be made to the manager in their capacity as the employer’s representative.

Appropriate third parties are:

• a prescribed person, such as the Pensions Regulator, Commissioners of HM Revenue and Customs, the Health and Safety Executive. A full list of prescribed persons is available at: www.pcaw.org.uk/section/P/#files;

• a minister of the Crown, including someone or a body appointed for the relevant purpose; and

• a legal adviser, if someone blows the whistle while taking legal advice.

It is a failing of PIDA that trade unions are not included in the list of organisations that can receive disclosures. Unions are well-positioned to be entrusted by employees with sensitive information and to be sufficiently well-connected to pass the message on and have the matter dealt with effectively.

Any disclosure under PIDA must also be made in good faith. This means that the main reason for making the disclosure cannot be to retaliate against a colleague, or in pursuit of personal advancement as ruled in Street v Derbyshire Unemployed Workers Centre [2004] EWCA Civ 964.

If there is a dispute over whether the disclosure was made in good faith, which party carries the burden of proof? The decisions in Lucas v Chichester Diocesan Housing Association Ltd EAT/0714/04 and in NHS Manchester v Fecitt and others [2011] EWCA Civ 1190 state that this is on the employer/the party which says that the individual acted in bad faith. However, other authorities conflict on this.

It has been argued that for a disclosure to be protected by PIDA it must amount to more than a mere allegation of wrongdoing. But is there a requirement for the disclosure to reveal facts showing wrongdoing? Judge Slade in Cavendish Munro Professional Risks Management Ltd v Geduld UKEAT/0195/09 gave a hospital-based example. In her view, there is a difference between simply stating “you are not complying with health and safety requirements” and specifying that “the wards have not been cleaned for the past two weeks”.

What if the employer was already aware of the wrongdoing? Will this put the disclosure outside of the ambit of PIDA? No, it won’t matter — it may in fact frequently be the case that the employer is already aware of the wrongdoing.

Suffering a detriment

In order to establish that the whistleblower has suffered a detriment for making a disclosure, they will need to show that their employer knew of the disclosure. The courts are unlikely to infer knowledge from the fact that the employer has not offered a satisfactory explanation for the less favourable treatment.

The core reason for any detriment that the whistleblower suffers must be the disclosure that they made (see Aspinall v MSI Mech Forge Ltd EAT/891/01). The individual will need to be able to show more than that the detriment would not have happened had it not been for the disclosure. The whistleblower will need to show that the detriment that they suffered was motivated by their disclosure (London Borough of Harrow v Knight EAT/0790/01).

The fact that an employee has made a disclosure does not give them immunity from suffering a detriment. If the way in which the disclosure is made breaches their duties to the employer, then the employer may be entitled to take disciplinary action.

In the case of Bolton School v Evans [2006] EWCA Civ 1653, Evans, an IT teacher was concerned about the security aspects of a new computer system that the school at which he worked was installing. He registered his concerns, but nothing happened. Evans then hacked into the system to prove his point. He told the Headmaster what he had done — which led to him being disciplined. The Court of Appeal decided that the disciplinary action against Evans was because of the hacking, not the disclosure that he had made. The issue is whether the employer had ulterior motives for disciplining the whistleblower – and in this case it did not.

Where an individual has been dismissed for making a protected disclosure, they will have a claim for unfair dismissal, irrespective of the length of service. Compensation will be unlimited that is, based on loss of earnings and comprising a sum for injury to feelings, while not being subject to a cap.

In terms of an award for injury to feelings, the sums due are the same as for where discrimination occurred (Virgo Fidelis Senior School v Boyle UKEAT/0644/03). For further information on the different bands please see Vento v Chief Constable of West Yorkshire Police (No. 2) [2002] EWCA Civ 1871 as updated by Da’Bell v National Society for Prevention of Cruelty to Children UKEAT/0227/09/2809.

Despite the limitations described above, it is comparatively easy, relative to other employment legislation, for an individual to bring their disclosure under the auspices of PIDA. The law is relatively generously drafted and courts apply the provisions of PIDA purposively. That is to say, where the meaning of the legislation is debatable, the courts will interpret the law with a view to carrying out Parliament’s desire to protect employees who raise legitimate concerns from suffering reprisals, as they ruled in Babula v Waltham Forest College [2007] EWCA Civ 174.

Whistleblowing still high risk

However, making a disclosure about wrongdoing at work is still seen as a high risk step for employees to take. This is despite the concerted effort of a number of unions, such as the RCN nursing union following the Haywood scandal, to normalise whistleblowing.

Haywood, a nurse at the Royal Sussex Hospital, was concerned about the poor care that elderly patients were receiving. She raised her concerns with management, but they were ignored. So, she decided to film what was happening for the BBC TV programme Panorama.

Following the programme, she was referred to the Nursing and Midwifery Council which decided that she should be struck off. However, a campaign led to Haywood being reinstated, though she was still subject to a one-year caution.

Shockingly, eight out of 10 of people who blow the whistle also end up losing their jobs. This figure may overstate the position, in that a number of whistleblowers could be making disclosures when they know their posts are under threat or they are already likely to be dismissed. However, the perception that employers will retaliate is not only understandable, but entirely justified.

Whatever the true level of reprisals by employers, there clearly remains insufficient transparency about serious wrongdoing in the workplace. Nevertheless, while the legislation has flaws and has failed, on its own, to transform the culture of intolerance of whistleblowing, PIDA can be used effectively on behalf of workers.