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Published online by Cambridge University Press: 02 January 2018
In a number of high profile disasters, human and financial, in recent years, such as the Piper Alpha oil rig fire and the collapse of the BCCI bank, employees had concerns about the impending disaster but did not raise them for fear of repercussions at work. This has led to increased recognition of the role that employees can play in safeguarding the public interest. In 1998 legislation was finally passed to provide employment protection for employees who raise concerns about malpractice and wrongdoing at work. The Public Interest Disclosure Act 1998 (PIDA) provides protection against dismissal and detrimental action where employees make disclosures about a range of specified subjects. Protection is primarily aimed at internal disclosure, but the Act also provides a framework for raising issues externally. This article examines the provisions of the Act and assesses its potential to protect those who risk their livelihoods to raise concerns that are in the public interest.
1. Whistleblower Protection Act 1978 USC 2302, False Claims Act 31 USC 3729–3731. For an example of individual state protection, see Michigan's Whistle-Blower's Protection Act. Michigan Compiled Statutes Annotated 15.361-369. See also, M Miceli and J Near Blowing the Whistle: The Organisational and Legal Implications for Companies and Employees (New York: Lexington Books, 1992); T Devin and D Aplin ‘Whistleblower Protection: The Gap Between Law and Reality’ (1988) Howard LJ 223; J Feerick ‘Towards a Model Whistleblowing Law’ (1992) 19 Fordham Urban LJ 585.
2. The Act was drafted with the assistance of Guy Dehn, the director of Public Concern at Work, a charity that advises those who wish to raise public interest concerns. It came into force on 2 July 1999.3. On the need for protection in the UK, see D Lewis ‘Whistleblowers and Job Security’ (1995) 58 MLR 208 and L Vickers Protecting Whistleblowers at Work (London: Institute of Employment Rights, 1995).
4. Faccenda Chicken Ltd v Fowler (1986) IRLR 69; Ticehurst v BT plc (1992) IRLR 219.
5. Graham Pink was dismissed for gross misconduct after publishing in the Guardian a series of letters he had written to, among others, hospital managers, his MP, and the Prime Minister. In these he raised concerns about staffing levels on the ward in which he worked. G Pink Whistleblowing: for whom the truth hurts (London: the Guardian and Charter 88, 1992).
6. Investigation into the Clapham Junction Railway Accident, November 1989, HMSO Cm 820.
7. The Public Inquiry into the Piper Alpha Disaster, November 1990, HMSO Cm 13 10.
8. Court Inquiry, Department of Transport, Ct No 8074, 1987 HMSO.
9. Guardian, 30 May 1998.
10. Confirmed by the Secretary of State for Health HC Deb, 18 June 1998 Cols 529–30.
11. Inquiry into the Supervision of the Bank of Credit and Commerce International, 2 October 1992, HMSO, 198.
12. Public Concern At Work, Registered Charity No 1025557.
13. Public Interest Whistleblowing: A report of the activities of Public Concern at Work 1993-98 (London: Public Concern at Work, 1999).
14. In their report for the years 1993-98, PCAW refer to independent survey which shows that 80% of finance directors would positively want to recruit a whistleblower. See Public Interest Whistleblowing, above n 13, p 8.
15. Faccenda Chicken Ltd v Fowler (1986) IRLR 69.
16. Ticehurst v BT plc (1992) IRLR 219.
17. Initial Services v Putterill (1968) I QB 396.
18. See Y Cripps The Legal Implications of Disclosure in the Public Interest (London: Sweet & Maxwell, 1994).
19. Either misconduct or some other substantial reason justifying the dismissal (ERA 1996, s 98).
20. ERA 1996, s 98(4). See Rolls Royce v Walpole (1980) IRLR 343. However, see also Haddon v Van Den Bergh Foods Ltd (1999) IRLR 672 EAT, where a move away from the ‘range of reasonable responses’ test was suggested.
21. Compensation is now limited to £50,000: Employment Relations Act 1999.
22. An additional limitation is the need to work for a year for the employer before protection is granted.
23. ERA 1996, ss 44 and 100, introduced following the adoption of the EC Framework Directive 89/39 1.
24. Guidance for Staff on Relations with the Public and the Media (Leeds: NHS Executive, 1993). This has been amended and updated in the light of PIDA in ‘The Public Interest Disclosure Act 1998: Whistleblowing in the NHS’, NHS Executive, HSC 1999/198, 27 August 1999.
25. First Report of the Committee on Standards in Public Life, 1995, HMSO Cm 2850 I–II.
26. Government Response to the First Report of the Committee on Standards in Public Life, 1995, HMSO Cm 2931.
27. Tony Wright's ten minute rule Bill of 1995 and Don Touhig's private members Bill of 1996.
28. See G Dehn's commentary on PIDA in Current Law Annotated Statutes (London: Sweet & Maxwell), and also D Lewis (1998) ILJ 325.
29. Other automatically unfair dismissals include dismissal for asserting a statutory right, dismissal for membership of a trade union, dismissal for refusing to work on a Sunday (certain retail employees only).
30. As for dismissals for trade union activity, interim relief is available for employees while awaiting a full hearing.
31. The words ‘worker’ and ‘staff’ will be used in what follows to mean employees and other workers covered by the Act. Workers are defined in s 1(43)(K) of the Act as including those working under a contract for services, those working as agency workers, trainees and those who work for the NHS but who are not employees. For detail on forms of labour covered by other employment protection legislation, see S Deakin and G Morris Labour Law (London: Butterworths, 1998) pp 149–182.
32. ERA 1996, s 47A.
33. HRA 1998, s 3.
34. See L Vickers ‘Whistleblowing in the Public Sector and the ECHR’ (1997) PL 594, and J Bowers and J Lewis ‘Whistleblowing: Freedom of Expression in the Workplace’ (1996) EHRLR 637.
35. ERA 1996, s 43B.
36. In the following discussion, these issues will be referred to as ‘malpractice’, or ‘relevant concerns’.
37. Gartside v Outram (1856) 26 LJ Ch 113.
38. Eg Lion Laboratories v Evans (1984) 3 WLR 539 concerned the disclosure of concerns about the reliability of the breathalyser when it was first introduced. See Cripps, above n 8 for further examples.
39. 5 USC 2302 (b)(8).
40. Sex Discrimination Act 1975, Race Relations Act 1976, Disability Discrimination Act 1995.
41. Human Rights Act 1998.
42. See L Vickers Protecting Whistleblowers At Work (London: Institute of Employment Rights, 1995).
43. Lord, Nolan, HL Deb, vol 590 Google Scholar, col 614.
44. ERA 1996, s 43C.
45. ERA 1996, s 43E.
46. ERA 1996, s 43D. Public Concern at Work is designated a legal advice centre by the Bar Council so it will be covered by this section.
47. Lord, Borrie QC, HL Deb, vol 590 Google Scholar, col 624.
48. Lord Denning in Initial Services v Putterill (1968) 1 QB 396 at 405.
49. ERA 1996, s 43F.
50. The Public Interest Disclosure (Prescribed Persons) Order 1999, SI 1999/1549. As originally drafted, the Act included a requirement that such a disclosure could not be made for personal gain, but this restriction was removed at committee stage to allow organisations such as the Inland Revenue to offer rewards for disclosure of relevant information. See proceedings of Standing Committee D, Hansard, 11 March 1988.
51. (1989) 3 WLR 265.
52. ERA 1996, s 43G.
53. Section 43G(3).
54. (1984) 3 WLR 539.
55. (1984) 3 WLR 539.
56. See Initial Services v Putterill (1968) 1 QB 396, where Lord Denning held that the public interest exception to the duty of confidence should extend to ‘crimes, frauds and misdeeds, both those actually committed as well as those in contemplation’ (emphasis added); see also Malone v Commissioner of Police (1979) 2 WLR 700, where Megarry V-C held that information relating to ‘some apprehension of an impending chemical or other disaster’ should, in the public interest, be disclosed.
57. (1981) 2 WLR 848.
58. A point made by Cripps, above n 18, p 132.
59. ERA 1996, s 43H.
60. Consultation Paper on Richard Shepherd's Public Interest Disclosure Bill (London: Public Concern at Work, 1997).
61. Those who raise concerns about race or sex discrimination (Sex Discrimination Act 1975, s 4 and Race Relations Act 1976, s 2) have been unsuccessful where employers have shown that the reason for dismissal was not the raising of a concern, but the manner in which it was raised: British Airways Engine Overhaul Ltd v Francis (1981) IRLR 9 EAT and Re York Truck Equipment Ltd, Industrial Relations Legal Information Bulletin 20 February 1990, p 11.
62. ERA 1996, s 103A.
63. 5 USC 2320.
64. See Whistleblower Protection: Determining whether reprisal occurred remains difficult (US General Accounting Office October 1992).
65. ERA 1996, s 43B(3).
66. Other types of information covered are: information obtained in confidence from other states or from international organisations; information likely to result in an offence or other related consequences; and special investigations under statutory warrant. OSA 1989, ss 1–6.
67. This, of course, raises many questions about the exact meaning of ‘damage’, and indeed of ‘the State’ (on which see R v Ponting (1985) Crim LR 318), a full discussion of which is outside the scope of this article.
68. See H Yourow The Margin of Appreciation Doctrine in the Dynamics of European Human Rights Jurisprudence (London: Kluwer Law International, 1996); T O'Donnell ‘The Margin of Appreciation Doctrine: Standard in the Jurisprudence of the European Court of Human Rights’ (1982) Human Rights Q 474.
69. ERA 1996, s 193.
70. An example given in the discussion of this section in the debate on the Act in Standing Committee. Standing Committee D, Hansard, 11 March 1998.
71. See press release from Department of Health, 25 September 1997.
72. The partial incorporation of the ECHR into English law via the Human Rights Act 1998 may also provide some protection. See L Vickers ‘Whistleblowing in the Public Sector and the ECHR’ (1997) PL 594.
73. See Whistleblower Protection: Survey of Federal Employees on Misconduct and Protection from Reprisal (US General Accounting Office, July 1992).
