Clause 14 of the Enterprise and Regulatory Reform Bill aims to close a loophole which allows individuals to use the Public Interest Disclosure Act 1998 (“PIDA”) to obtain protection for raising concerns relating to breaches of their own employment contracts. As the Bill moves to the report stage before the House of Commons, it is suggested that if the proposed amendment proceeds in its current form, the legislation is likely to be weaker and unnecessarily complex as a result.
PIDA has been referred to as ‘the model, as far as Europe is concerned’ for whistleblowing legislation by the Council of Europe [The Protection of Whistle-blowers, September 2009, Doc 12006, para 37]. In contrast to other European jurisdictions, employees in the United Kingdom are currently well placed to obtain protection for raising whistleblowing concerns. In order to be a legitimate instance of whistleblowing under PIDA, the person must make a ‘qualifying disclosure.’ The categories of information (contained in s43B (1) PIDA) extend to include information regarding:
- a criminal offence,
- a failure to comply with any legal obligation,
- a miscarriage of justice,
- danger to the health and safety of any individual,
- damage to the environment,
- or the deliberate concealment of information tending to show any of the matters listed above.
For each of the categories a claimant must also prove that he made the disclosure in good faith along with other evidential requirements dependent on whether the disclosure was made internally, to a prescribed person or wider (for example to the media). PIDA allows employees from both the public and private sector to take a claim for detriment or unfair dismissal. As a consequence, the legislation requires a sufficient degree of flexibility to capture concerns raised by employees in those sectors. An unintended consequence of this flexible drafting is that the claimant in Parkins v Sodexho [2002] IRLR 109 was able to successfully argue that concerns raised to his employer about breaches of his employment contract could amount to ‘a breach of a legal obligation’ under the Act.
The motivation for closing the loophole is clear. Individuals do not need a qualifying period of employment to take a PIDA claim. As the government has changed the qualifying period of employment for many other forms of tribunal claim to two years, a substantial rise in PIDA claims to enforce private employment rights is inevitable. The proposed amendment, however, will require claimants to prove that their disclosure was made ‘in the public interest.’ This change will not only affect disclosures relating to a breach of a legal obligation, but all of the categories of disclosures contained in the Act.
Suggested impact of the proposal
Inclusion of a ‘public interest’ requirement is unlikely to close the loophole. This is because despite adding a public interest requirement, the wording in s.43B (1) (b) ‘that a person has failed, is failing or is likely to fail to comply with any legal obligation to which he is subject’ will remain. Inclusion of a public interest requirement will make it more difficult for claimants to argue that a breach of a private employment contract should be protected under PIDA. Yet, such an argument would not be impossible. An employee may well argue that a breach of their own employment contract has consequences for the wider public interest because of the nature of the organisation to which they are employed. Concerns relating to an individual’s terms of employment or working hours, for example, could be argued to satisfy the requirements of the legislation if the employee could put forward a convincing argument. Whilst it may appear that an individual would have a limited chance of success in advancing such an argument, they are likely to have a greater chance of success than an individual working in a private sector organisation. Inclusion of a public interest requirement may therefore create inequality between public sector and private sector claimants.
Determination of the public interest can only be made on a case by case basis. Whilst this allows for flexibility, it can also lead to inconsistency. In B & C v A [2002] EWCA Civ 337 the Court of Appeal stated that it was impossible to provide a uniform definition as to what the public interest was as the ‘circumstances in any particular case under consideration can vary so much that a judgment in one case is unlikely to be decisive in another case.’ Members of the tribunal are likely to seek representations from both claimant and respondent as to whether the disclosure in question was made in the public interest.
The United Kingdom has a wealth of available judicial precedent whereby courts have grappled with the meaning of the public interest, particularly in breach of confidence actions, or emerging cases involving breach of privacy or ‘misuse of private information.’ However, consideration must be given as to the applicability of such cases to employment tribunal proceedings. Unrepresented claimants are likely to be placed at a considerable strategic disadvantage. One must consider whether they will have the knowledge or resources to access these decisions. Meanwhile, those providing pro bono services to claimants are likely to be placed under additional strain as hearings become considerably more complex.
A public interest requirement will inevitably lead to the tribunal having to question not only whether the act of disclosure was in the public interest but also whether information disclosed had a public interest value. Currently, the subsection places emphasis on the individual ‘tending to show’ wrongdoing which falls within the prescribed categories. Provided the other evidential criteria are met, this offers a relatively achievable threshold for claimants.
By making all categories of disclosure subject to an overarching public interest requirement, tribunals may be placed in an unsavoury position where they have to question whether a disclosure about a criminal act (for example) was in actually made in the public interest. It should be considered whether this will lead to one tribunal having to determine that a disclosure of information that a colleague often parks his vehicle on double yellow lines should be protected as other tribunals tie themselves up in knots trying to imagine whether a breach of health and safety could really have resulted in dangerous consequences.
Furthermore, there is a danger that circumstances may arise whereby one act of disclosure is considered to be in the public interest because the claimant works in a public sector organisation where another individual who discloses similar information in a private sector organisation may not meet the threshold. This is contrary to the spirit of the Public Interest Disclosure Act which does not discriminate between public and private sector whistleblowing. Ultimately, it should be questioned whether an overarching public interest requirement is necessary when the Act already provides safeguards from abuse by requiring claimants to show that they made the disclosure in ‘good faith’ and had ‘a reasonable belief.’
Possible solutions
A more appropriate way of rectifying the situation created by Parkins v Sodexho would be to reconsider the prescribed categories of information in subsection (1). Subsection (1) (b) could be rephrased to expressly exclude private contractual agreements between the employer and employee. The danger with this approach is that in certain employment sectors, such a provision may exclude the disclosure of information which may otherwise be in the public interest. For example, paragraph 20 of the Civil Service Code identifies that the Code is part of a contractual obligation between the Civil Servant and employer. If a Civil Servant is being asked by his employer to act in a way which is contrary to the Civil Service Code it is suggested that subsection (1) (b) would provide protection. Careful drafting is required to ensure that while the deficiencies in subsection (1) (b) are rectified, the amendments do not restrict the scope of the legislation to protect disclosures of information in the public interest.
Further amendments may assist to clarify and bolster the current prescribed categories of disclosure. For example, it may be possible to distinguish certain prescribed categories of information to deal specifically with public sector issues. The New Zealand Protected Disclosures Act 2000 draws influence from PIDA and offers protection to employees in both the public and private sector. Section 3 of the Act incorporates the ‘unlawful, corrupt or irregular use of funds or resources in a public sector organisation’ into a definition of wrongdoing. These amendments could be achieved without provision of an overarching public interest requirement.
Any amendment is likely to have a significant impact on how the legislation operates in practice. It is therefore unfortunate that the government has failed to offer the Enterprise and Regulatory Reform Bill for public consultation. If PIDA is to remain as the ‘model’ for whistleblowing protection for Europe and provide consistent protection for employees in the public and private sectors, any steps to improve the legislation must be taken with the utmost care.
About Ashley Savage
Dr. Ashley Savage is a Lecturer in Law at Northumbria University. Ashley was previously employed at Public Concern at Work, the UK’s leading independent authority on whistleblowing. His doctoral thesis, completed at the University of Durham, considers leaks and whistleblowing in the public interest with a primary focus on employees in the Civil Service. He was called to the bar in 2010.
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