public interest disclosure act general

Freedom to Care Return to General INDEX Return to Nursing IANE Index

The Public Interest Disclosure Act

The Public Interest Disclosure Act came into effect on 2nd July 1999. Media hype has led everyone to believe that whistleblowers are now protected and victimizing employers will get their come-uppance. Is this belief true'?

FTC made its position clear in The Whistle No. 13 - and this represents the response we made during the consultation period. Our view is that this law is much too weak to be effective. The Act puts all the onus on the whistleblower. Our review of whistleblowing cases over the last ten years shows that had such a law been in place it would not have helped. The law is also so complicated and contorted that even some lawyers have difficulty understanding it - there's little hope then for the citizen threatened with unemployment who has to pay a lawyer to explain the law to him or her.

A law to protect whistleblowers is certainly needed but it must be modelled on anti-discrimination law (sex, race, disability) and assume a prior right to freedom of speech in the workplace. This would make it simple in conception and place the onus on the employer.

NEWS 8th February 2000: The charitable legal advice centre, Public Concern at Work, which initiated and largely formulated the PIDA has been refused information on the first fifty tribunal claims brought under the Act. The public register does not include particulars of claims, so that the Act cannot be monitored. The centre is taking legal action to challenge the decision to keep the particulars secret. (The Times, London, Law section, 8th Feb 2000, p.23.)

NEWS 13th October 2000:

Public Concern at Work won a ruling in the High Court that details applications to employment tribunals should be made public. New Labour’s twin obsessions of control and secrecy made a mockery of their claims to a commitment towards a culture of rights when, on July 26 2000, without consultation and without any public announcement, they quietly introduced a statutory instrument to overturn the High Court’s Ruling. As a result, from late 2000, all the public will know is that an application has been lodged at an employment tribunal, the participants’ names and addresses, and nothing else. The Department of Trade and Industry calls this "a small administrative detail". This "detail" has now effectively destroyed the aim of the bill, which was to force companies to follow basic safety procedures, have some sort of rudimentary ethical policy and protect employees who raise valid concerns without having to resort to lawyers.

FtC would like to be hopeful, but we advise anyone who is getting into difficulty as a result of raising concerns at work NOT to allow themselves to believe that they are now legally protected. Get advice from a lawyer is you wish, (preferably one who has no vested interest in promoting this new law), but also listen to what other victimized dissidents have to say - there are plenty of them in FTC.

We fear that this law, well-intentioned as it may be, may entangle, frustrate and disappoint. It is a long and intricate legal document and we reproduce only two parts of it below for readers to come to their own conclusions.

FTC members are advised to read the Act for themselves. Copies may be obtained from the Stationery Office for a modest sum and there is a also a copy on the Internet at:

Public Interest Disclosure Act - text online

NEWS July 2001: BRISTOL REPORT SAYS PIDA LAW INEFFECTIVE

The Kennedy inquiry into high mortality in children’s heart surgery at the Bristol Royal Infirmary (see last issue) says in its July 2001 report that the Public Interest Disclosure Act (for protecting whistleblowers) would not have helped the whistleblowing doctor Steven Bolsin. Naturally, the Health Minister was persuaded to state that this is incorrect. Who really knows? What is clear is that the PIDA is very weak, and even if it were stronger it would not necessarily engender trust or help professionals and managers to take on a wider conception of their social responsibilities.

NEWS November 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.]

Some Key Points on PIDA 1998

1. PIDA takes effect, primarily, by amending the Employment Rights Act 1996 ("ERA"), the centrepiece of employment protection legislation. References are to ERA, as amended.

2. Intention of PIDA: to protect from victimization or dismissal workers who report certain categories of malpractices by their employers or third parties; to encourage (but not require) employers to introduce effective reporting procedures.

3. To qualify for protection, the worker (whether employee or otherwise within the extended definition of "worker" - s.43K ERA) must have made a "protected" disclosure.

4. To be "protected" the disclosure must be of information which the worker reasonably believes tends to show one or more of 6 categories of malpractice:

(A) A criminal offence; (B) a failure to comply with any legal obligation; (C) a miscarriage of justice; (D) danger to the health and safety of any individual; (E) environmental damage and (F) the deliberate concealment of information tending to show any of these matters.

5. And the disclosure must be to the worker's employer or to another (statutorial defined) responsible person (s. 43C ERA); or in the course of obtaining legal advice (s. 43D ERA); to a Minister of the Crown (s. 43E ERA); to a person prescribed by the Secretary of State (s. 43F ERA) or, in certain restricted circumstances, to any other person (ss. 430 and 43H ERA) - so called "external" disclosures.

6. And, depending on to whom the disclosure is made, one, some or all of the following further requirements must also be satisfied: (A) Disclosure must be made in good faith; (B) must be made in the reasonable belief that the disclosure and any allegation is substantially true; (C) must not be made for personal gain; (D) it must be reasonable in the circumstances to make the disclosure (s. 430 (3) ERA specifies six non-exclusive bases on which to decide the issue of reasonableness).

7. And, for external disclosures not of an "exceptionally serious failure", the worker must also prove that one or more of the following conditions apply:

A. at time of disclosure, worker reasonably believes that s/he will be "subjected to detriment" by the employer if s/he discloses to the employer or to a prescribed person;

B. where there is no prescribed person, the worker reasonably believes that it is likely that evidence of the malpractice will be concealed or destroyed if s/he makes a disclosure to the employer;

C. the worker has previously made a disclosure of substantially the same information to the employer or to a prescribed person.

8. "Exceptionally serious failure" s. 43H. Same requirements as for wider disclosure generally except no requirement per para. 7 above. Additional requirement: the malpractice/default is of an exceptionally serious nature - arguably this will be a matter of fact and not simply the worker's reasonable belief. That is, arguably, no matter how honestly the worker has behaved, if s/he is mistaken as to the seriousness of the malpractice, his/her disclosure will not be protected.

9. Victimization and unfair dismissal - s.47B ERA. The right not to be "subjected to any detriment". s.47B(1) ERA provides: "A worker has a right not to be subject to any detriment by any act, or any deliberate failure to act, by his employer done on the ground that the worker has made a protected disclosure."

10. Compensation: s.49 ERA. Such amount (no upper limit) as tribunal considers "just and equitable in all the circumstances" having regard to the detriment and any other resulting loss suffered by the worker.

FTC supporters will be particularly interested in how the Act deals with disclosure to the media, to professional associations, consumer groups and the like. This is covered in the section 'Disclosure in other cases' (43G), which is reproduced below. (It would be better to go to the original - try the link in the box above.)

(1) A qualifying disclosure is made in accordance with this section if-

(a) the worker makes the disclosure in good faith,

(b) he reasonably believes that the information disclosed, and any allegation contained in it, are substantially true,

(d) any of the conditions in subsection (2) is met, and

(e) in all the circumstances of the case, it is reasonable for him to make the disclosure.

(2) The conditions referred to in subsection (1 )(d) are-

(a) that, at the time he makes the disclosure, the worker reasonably believes that he will be subjected to a detriment by his employer if he makes a disclosure to his employer or in accordance with section 43F,

(b) that, in a case where no person is prescribed for the purposes of section 43F in relation to the relevant failure, the worker reasonably believes that it is likely that evidence relating to the relevant failure will be concealed or destroyed if he makes a disclosure to his employer, or (c) that the worker has previously made a disclosure of substantially the same information-

(i) to his employer, or

(ii) in accordance with section 43F.

(3) In determining for the purposes of subsection (1 )(e) whether it is reasonable for the worker to make the disclosure, regard shall be had, in particular, to-

(a) the identify of the person to whom the disclosure is made,

(b) the seriousness of the relevant failure,

(d) whether the disclosure is made in breach of a duty of confidentiality owed by the employer to any other person,

(e) in a case falling within subsection (2)(c)(i) or (ii), any action which the employer or the person to whom the previous disclosure in accordance with section 43F was made has taken or might reasonably be expected to have taken as a result of the previous disclosure, and

(f) in a case falling within subsection (2)(c)(i), whether in making the disclosure to the employer the worker complied with any procedure whose use by him was authorized by the employer.

(4) For the purposes of this section a subsequent disclosure may be regarded as a disclosure of substantially the same information as that disclosed by a previous disclosure as mentioned in subsection (2)(c) even though the subsequent disclosure extends to information about action taken or not taken by any person as a result of the previous disclosure.

The section 43F referred to in the above excerpt concerns 'Disclosure to prescribed person' i.e. prescribed by an order made by the relevant Secretary of State.

QUALIFYING DISCLOSURE

Disclosures qualifying for protection. 43B. - (1) In this Part a "qualifying disclosure" means any disclosure of information which, in the reasonable belief of the worker making the disclosure, tends to show one or more of the following

a) that a criminal offence has been committed, is being committed or is likely to he committed,

b) that a person has failed, is failing or is likely to fail to comply with any legal obligation to which he is subject

c) that a miscarriage of justice has occurred, is occurring or is likely to occur,

(d) that the health or safety of any individual has been, is being or is likely to he endangered

e) that the environment has been, is being or is likely to be damaged, or

f) 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.

(2) For the purposes of subsection (I), it is immaterial whether the relevant failure occurred, occurs or would occur in the United Kingdom or elsewhere, and whether the law applying to it is that of the United Kingdom or of any other country or territory.

(3) A disclosure of information is not a qualifying disclosure if the person making the disclosure commits an offence by making it.

Return to Site general INDEX Return to Nursing IANE Index