The Public Interest Disclosure Act 1998 (PIDA) came into force in 1999 and inserted section 43A to 43L and 103A into the Employment Rights Act 1996 (ERA). PIDA makes it unlawful to treat a worker negatively or to dismiss them because they have raised a whistleblowing concern. The rights offered to workers under PIDA are day one rights meaning the worker does not need to accrue service and the rights apply from the first day they begin work. This is a stark difference from other employment rights which require an employee or worker to have at least two years of service.
Raising a whistleblowing concern is also known as making a ‘protected disclosure’ in law. A protected disclosure is defined in 43A of PIDA as a qualifying disclosure (further defined under 43B) which is made by a worker in accordance with the sections of 43C to 43H of PIDA.
What is a qualifying disclosure?
A qualifying disclosure includes any disclosure of information which, in the reasonable belief of the worker making the disclosure, shows one or more of the following:
- a criminal offence has been committed, is being committed or is likely to be committed,
- that a person has failed, is failing or is likely to fail to comply with any legal obligation to which he 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,
- that the environment has been, is being or is likely to be damaged, or
- that information tending to show any matter falling within any one of the preceding paragraphs has been, is being or is likely to be deliberately concealed.
(N.B. The above text has been taken from PART IVA Protected Disclosures of PIDA)
Although disclosure is not defined, the term has a wide application. A disclosure can be made verbally or in writing. In order to be protected a disclosure must involve information and there must be a disclosure of information. A qualifying disclosure therefore must be a disclosure of information which, in the reasonable belief of the worker making it, shows one of the six specific types of failure (listed above) has taken place.
In order for the disclosure to be considered a qualifying disclosure, the worker must have a reasonable belief that the information disclosed shows a failure as contained in section 43B ERA 1996. It is not for the worker to show the allegations are true, as long as the worker believes the failure has occurred or may occur and in the view of the tribunal, the workers belief is reasonable, it does not matter if it later turns out to be wrong.
As a result of section 43B(1) ERAM as amended by section 17 of the Enterprise and Regulatory Reform Act 2013 (ERRA), since 2013 a disclosure will only be a qualifying disclosure if the worker reasonably believes the disclosure is in the public interest. Workers may still be able to show it is reasonable for them to view complaining about a breach or unfair working conditions being in the public interest.
Public interest means the concerns about wrongdoing affect people other than the worker him/herself. There may be a wider issue affecting multiple workers’, for example a bullying culture or discrimination in the workplace, which would make this a public interest concern.
Who is protected?
The protection applies to both employees and workers. PIDA has a wider definition of ‘worker’ which extends protection to many types of employment relationships and working arrangements.
A “worker” is defined by section 230(3) of the ERA as:
“an individual who has entered into or works under (or, where the employment has ceased, worked under) -
- a contract of employment; or
- any other contract, whether express or implied and (if it is express) whether oral or in writing, whereby the individual undertakes to do or perform personally any work or services for another party to the contract whose status is not by virtue of the contract that of a client or customer of any profession or business undertaking carried on by the individual.”
The extended definition of ‘worker’ can be found under 43K of ERA. The definition extends protection to:
The definition of workers is extended to include agency workers and individuals supplied to work via an intermediary or third party, where the worker was introduced or supplied to do the work by the intermediary or third party, and where the terms on which the worker is engaged to do the work are, or were, substantially determined by the person for whom he works or has worked, by the intermediary, the third party or by both of them.
This covers an independent contractor who provides services either personally or from their home, namely a homeworker. One limitation of this is that it is on the basis they are a contractor and the provision refers to contracts, it is unlikely to apply where there is no contract.
Certain NHS Practitioners
This section refers to workers employed under certain NHS contracts, which are referenced under the definition, and include self-employed doctors, dentists, ophthalmologists and pharmacists in the NHS. In this scenario the employer is the relevant Primary Care Trust or Health Board.
Nurses and Midwives in Training
Student nurses and midwives who are undergoing work experience as part of an education course or training which is approved by or under arrangements with the Nursing and Midwifery Council, in accordance with article 15(6)(a) of the Nursing and Midwifery Order 2011, are covered under this provision.
This essentially includes all those who are not employees but are provided with work experience as part of a training course, or are provided training for work, except where the course is run by a university, college, school or other educational establishment.
Under Lake v British Transport Police  EWCA Civ 424, the Court of Appeal decided a claim can be brought against the Police Disciplinary Board under whistleblowing law and the body does not have judicial immunity. Whistleblowing protection did not apply to police officers until the Police Reform Act 2002 which added police officers to the extended definition of worker in 43K of the ERA.
Those who are in employment under or for the purposes of a government department or any officer or body exercising on behalf of the Crown functions conferred by a statutory provision are considered Crown Employees. Under section 191 ERA they are protected by PIDA. (This does not extend to members of the naval, military or air forces of the Crown and those employed for Security Service, the Secret Intelligence service and GCHQ are excluded from protection.
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When is a qualifying disclosure protected?
In order to qualify for protection under PIDA, the worker must make a protected disclosure which has 3 main elements:
- The worker must reasonably believe and provide information for a concern, which shows a category of wrongdoing as specified in PIDA.
- The worker must reasonably believe the concern is in the public interest.
- The concern must be raised in accordance with 43C to 43H of the ERA.
A qualifying disclosure is protected, if made to one of the people listed in section 43C to 43H of the ERA. The people listed include:
- The worker’s employer
- The person responsible for the failure
- Legal advisers
- Government ministers
- A person prescribed by an order made by the Secretary of State
- A person who is not included in the list above, provided certain conditions are met (the conditions are varied in serious cases) in accordance with 43F and 43H of the ERA.
A worker may raise concerns internally to the employer, which includes anyone senior. Anyone more senior to the worker will amount to an employer i.e. line manager, senior manager or a specific whistleblowing contact specified in a staff handbook/relevant policy.
A worker may also raise concerns externally to someone outside of the employer. A prescribed person may include someone prescribed by the law to hear concerns, which includes your local MP and wider disclosures which may include the police. It is easier to qualify for protection when raising concerns with a protected person, however when making wider disclosures it may be more difficult as there are additional tests to satisfy.
The relationship between confidentiality and disclosure
As per 43J of the Employment Rights Act 1996 renders contractual terms void if they purport to preclude the making of a protected disclosure, where a disclosure of information to someone outside the employer is to qualify as a protected disclosure, there will be no breach of an express or implied contractual obligation.
Dismissal and Detriment
Workers have the right to not be subject to any detriment on the ground they have made a protected disclosure. If the claimant is an employee, the detriment will be in the form of a dismissal and may instead bring an unfair dismissal claim. A worker who is not an employee may bring a detriment claim if their contract is terminated.
Employer’s are encouraged to have a whistleblowing policy as it is designed to encourage employees, workers, volunteers and member’s to raise concerns around malpractice, wrongdoing and danger, and encourages staff to make disclosures to the prescribed persons.
Whistleblowing policies include details of:
- What is whistleblowing
- How to raise a concern
- Who the policy applies to
- Confidentiality for raised concerns
- Details around external disclosures
- The available protection for whistleblowers
- Details of key contacts e.g. a whistleblowing officer if applicable
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