Freedom to Care Return to INDEX
PUBLIC INTEREST DISCLOSURE BILL 1997
Comments on the Bill by Freedom to Care
27th January 1998
Freedom to Care's commentary on the Bill proposed by Richard Sheperd MP, promoted by the UK charity 'Public Concern at Work', and under consideration by the Department of Trade & Industry, having passed its Second Reading in the House of Commons in December 1997.
Having examined the Public Interest Disclosure Bill very carefully we conclude that,
1 The Bill is very weak in relation to its stated purpose and would probably only be invoked in situations which could otherwise be treated under existing legislation and the rules of regulatory bodies (e.g. employment law, criminal law, Companies Act, Financial Services Act, Environmental Protection Act, health & safety legislation).
2 Given the weakness of the Bill the existing legislation would probably have greater effectiveness in relation to public interest disclosure were the existing legislation to be implemented thoroughly and made accessible.
3 However, there is a need for special legislation to protect workers who make, or wish to make, public interest disclosures. Such legislation would be founded on the principles of the European Convention of Human Rights and modelled on anti-discriminatory legislation (sex, race, disability), and put the onus on the employer.
The Bill is unacceptably weak because, most importantly,
4 It places the onus (burden of proof) on the worker to show reasonable cause, when the onus should be put on the employer to show the falsity or unreasonableness of the worker’s claim or action.
5 It posits a scope of relevant matters of disclosure which is too narrow. Our experience as a self-advocacy organisation of, and for, ‘whistleblowers’ shows that the scope of the matters which may be properly disclosed under conditions of failures of corporate responsibility needs to be indeterminately broadened. That is, what is a relevant matter of public concern and justifiable circumstances of disclosure should be left to the judgement of an industrial tribunal.
6 Section 43G in particular dilutes the Bill to the point of inefficacy. Here the ‘reasonableness’ test is expanded, while no thought is given to the reasonableness of the employer.
Finally,
7 The real test of this Bill to conscientious workers is whether, had it been in force, it would have protected those workers who have been identified by the public as typical ‘whistleblowers’. We have pursued this exercise in our discussion of cases in our own membership and the answer, we regret, is that an enactment of this Bill almost certainly would not have helped them. In nearly every case there was a failure of existing legislation which is already de jure stronger than the Bill, but which de facto suffered and suffers from problems of implementation and accessibility.
8 Whatever bill is drafted with the purpose of protecting workers who conscientiously make public interest disclosures it must allow for the award of compensation against the offending employer without a ceiling. This would follow the model of existing anti-discriminatory legislation.
Whistleblowers are conscientious and courageous workers who are of great benefit to any society. They deserve far better special legislative protection than the Bill affords.
(NB: The Act came into force on 2nd July 1999.)
UPDATE (Nov/Dec 2002):
Nurses not protected by PIDA?
It seems that nurses are not being protected by the Public Interest Disclosure Act. Juliette Bradbury, a solicitor at law firm Russell Jones and Walker, said the Act had not yet proved itself able to protect nurses. She told a Royal College of Nursing Welsh board conference in November 2002:
“Since the Act came into force in 1999 there have been around 1,000 cases brought under it. Only four or five have gone right through to an employment tribunal.” Mrs Bradbury added, “The Act has not shown it will protect nurses yet”.
[See ‘Nursing Times’, 5th November 2002, Vol 98, No. 45, p. 2.]