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Whistleblowing

The Public Interest Disclosure Act 1998 (PIDA) – often referred to as the ‘Whistleblowing’ Act – was introduced in the wake of various workplace scandals and disasters after official enquiries revealed that workers had known of the situation but were too scared to come forward to raise the alarm.

PIDA amended the Employment Rights Act 1996 (ERA) in order to provide a legal remedy for people who suffer a detriment as a result of disclosing information relating to crimes, breaches of a legal obligation, miscarriages of justice, dangers to health and safety or the environment and to the concealing of evidence relating to any of these. In particular, PIDA makes it automatically unfair dismissal to dismiss an employee for making a protected disclosure to someone to whom they are entitled to make it or to penalise them for doing so. There is no statutory cap on the compensation payable for claims derived from whistleblowing.

The Enterprise and Regulatory Reform Act 2013 made certain changes to the whistleblowing laws. Firstly, a legal loophole which meant that the definition of public interest included someone blowing the whistle about the terms of their own employment contract was closed so that a disclosure will not be protected unless the employee making it reasonably believes that doing so is in the public interest.  Secondly, the requirement that a worker who makes a protected disclosure must be acting in good faith in order to be protected against dismissal for having made it was removed. In its place, an Employment Tribunal (ET) has the power to reduce the compensation award by 25 per cent if it finds that a disclosure was not made in good faith. Lastly, the law has been strengthened so that individuals who suffer a detriment at the hands of a co-worker for making a protected disclosure can bring ET claims against both their co-worker and their employer in respect of that detriment. Employers will not be held liable for the actions of the co-worker if they can show that all reasonable steps were taken to protect the worker from the co-worker’s action.

Where someone decides to blow the whistle to a prescribed person rather than their employer, it is important that they choose the correct person or body for that particular issue. For example, someone making a protected disclosure on broadcasting malpractice should contact the Office of Communications. Someone wishing to blow the whistle on the improper administration of a charity should contact the Charity Commission for England and Wales or the Office of the Scottish Charity Regulator in Scotland.

The Department for Business, Innovation and Skills (now superseded by the Department for Business, Energy and Industrial Strategy) recently updated the list of prescribed persons and bodies to whom a disclosure can be made. Each entry contains a brief description of the matters that can be reported to that prescribed person or body.

In addition, a person may choose to blow the whistle to their legal adviser, in the course of obtaining legal advice, or to a member of the House of Commons about any matter specified in the Public Interest Disclosure (Prescribed Persons) Order 2014. Contact details for Members of Parliament can be found on the UK Parliament website.

The updated list of prescribed persons and bodies can be found on the GOV.UK website.

On 1 January 2016, the Small Business, Enterprise and Employment Act 2015 (Commencement No 3) Regulations 2015 brought into force Section 148 of the Act. This gives the Secretary of State the power to make regulations requiring a prescribed person or body to produce an annual report on all public interest disclosures made to them. The regulations must set out what information is to be included in the report, but its contents must not enable the whistleblower or the employer or other subject of the disclosure to be identified.

The measure has been introduced with the aim of ensuring that disclosures to all prescribed bodies are handled to a consistent standard and in order to provide greater reassurance to the whistleblower that action is being taken with regard to their disclosure. It is hoped that the changes will give those wishing to make a protected disclosure greater confidence to do so whilst at the same time driving behavioural change within organisations so that disclosures are viewed as an effective way of identifying and overcoming poor practice.

Whistleblowing and the Disclosure of Information

In Cavendish Munro Professional Risks Management Limited v Geduld, the Employment Appeal Tribunal (EAT) established the principle that, for the purposes of the whistleblowing provisions of the ERA, to qualify for protection a disclosure must be the giving of information as distinct from an allegation. In the recent case of Kilraine v London Borough of Wandsworth, the EAT has cautioned that care must be taken when applying this principle as the two are not mutually exclusive.

Ms Kilraine was employed by the London Borough of Wandsworth as an Education Achievement Project Manager until her employment ended in September 2011. The reason given for her dismissal was redundancy. However, she claimed that she had been subjected to detriments and was dismissed for making four protected disclosures.

The ET dismissed her unfair dismissal claim. In doing so, it found that the third and fourth disclosures she cited had not conveyed any information at all, but were merely allegations.

The EAT dismissed Ms Kilraine's appeal against the ET's decision. However, whilst it judged that the ET was entitled to find that the fourth disclosure did not qualify for protection for other reasons, it had erred in finding that it was nothing more than an allegation. Whilst it did make an allegation, in the EAT's view it also gave information about what was or was not said during a meeting that took place after Ms Kilraine had reported a safeguarding issue.

The Honourable Mr Justice Langstaff said, "The dichotomy between 'information' and 'allegation' is not one that is made by the statute itself. It would be a pity if Tribunals were too easily seduced into asking whether it was one or the other when reality and experience suggest that very often information and allegation are intertwined. The decision is not decided by whether a given phrase or paragraph is one or rather the other, but is to be determined in the light of the statute itself. The question is simply whether it is a disclosure of information. If it is also an allegation, that is nothing to the point."

EAT Decision Reinforces Agency Workers' Rights

In a guideline decision, the EAT has reinforced the rights of agency workers for the purposes of the whistleblowing provisions of the ERA, underlining that it is legally possible for a person to have one job but more than one employer (McTigue v University Hospitals Bristol NHS Foundation Trust).

Ms McTigue had been recruited by an agency, Tascor Medical Services Limited, which had an arrangement to supply staff to work at a sexual assault referral centre operated by the University Hospitals Bristol NHS Foundation Trust. She worked as a forensic nurse carrying out medical examinations and providing related services at the centre.

Ms McTigue had a written contract of employment with Tascor, which paid her salary, authorised any overtime she worked and operated the disciplinary and grievance procedures that applied to her. She had also been issued with an Honorary Appointment by the Trust. This was a standard form contract which authorised her to carry out her duties as a forensic nurse examiner, identified a named supervisor and also reserved the Trust's right to terminate the contract in circumstances which could jeopardise the continuity of quality of the care offered to patients.

After she was removed from the contract, Ms McTigue launched ET proceedings against the Trust, claiming that she had been victimised for making a protected disclosure.

Under Section 43K(1)(a) of the ERA, the statutory protection available to whistleblowers applies to a worker supplied to an end user by a third party where the terms on which they are engaged to work are substantially determined not by the worker but by the organisation for which they work, by the third party or by both of them. The ET struck out Ms McTigue's claim on the basis that Tascor, not the Trust, was her employer because it had decided the majority of her contractual terms. In the ET's view, the Trust emphatically did not 'substantially determine' the terms on which she worked.

In upholding her challenge to that decision, the EAT found that the ET had erred in law. It had erroneously focused on which entity determined the substantial terms on which Ms McTigue was engaged to work when it should have focused on whether the Trust and Tascor had both substantially determined the terms, even if to different extents. The EAT held that the Trust was her 'employer', and that she was its 'worker', within the extended meaning given to those words by Section 43K(1)(a).

Noting that the provision was enacted primarily to protect agency workers provided to an end user in circumstances such as this, the EAT found that Tascor, as supplier, and the Trust, as end user, each had a substantial role in determining the terms on which Ms McTigue was engaged to work at the centre.

In order to assist in dealing with these issues, the EAT went on to set out the questions to be addressed by the ET when determining whether an individual is a worker within the meaning of Section 43K(1)(a).

The case was sent back to a different ET to be heard afresh in accordance with the EAT's ruling.

The contents of this article are intended for general information purposes only and shall not be deemed to be, or constitute legal advice. We cannot accept responsibility for any loss as a result of acts or omissions taken in respect of this article.