The act of blowing the whistle on fraudulent or bad practices by employers has often been shied away from by employees for fear of retribution by a disgruntled employer. Now however, the law provides protection for employees placed in an invidious position about what to do where their moral obligation conflicts with their own sense of self-protection.
The Public Interest Disclosure Act 1998 expands the Employment Rights Act 1996 and provides remedies to employees who are dismissed or subjected to detrimental treatment for making a disclosure “which they reasonably believe tends to show criminal offences, breaches of legal obligations, miscarriages of justice, health and safety dangers and environmental risks”.
Specifically, the Act:
- Adopts an extended definition of “worker” beyond the definition contained in theEmployment Rights Act. This therefore includes casual staff, freelancers and agency workers, but excludes genuinely self-employed contractors.
- States that if an employee is dismissed principally because he/she has made a protected disclosure, such dismissal is automatically unfair. The employee need not have two year’s service and employees above normal retirement age will not be excluded
- Makes it unlawful to subject a worker to any detriment (including termination of his/her contract) for the same reason.
- Provides that there is no upper limit on the compensation that may be awarded.
- Allows employees (but not other workers) who are dismissed for making a protected disclosure the opportunity to obtain interim relief so that their employment continues pending a tribunal hearing
It must be borne in mind that under the Act, a worker must be treated detrimentally or dismissed for making a “protected disclosure”. For the disclosure to be “protected”, it must fulfil certain criteria which include criteria governing to whom the disclosure must be made. In most cases, it will be made by internal disclosure to the employer, although employees may make disclosures to specified third parties if, amongst other things, they reasonably believe that they would be subjected to detriment if they make the disclosure internally or that the evidence will be concealed or they have already made the disclosure internally. Crucially a legislative amendment in 2013 introduce the requirement for the disclosure to be in the public interest.
Workers cannot claim protection under the Act if by making the disclosure, he/she is committing an offence e.g. a breach of the Official Secrets Act, or it is a disclosure in respect of which legal professional privilege would apply.
It is important to note that an offence may not actually have been committed, but that the worker has a reasonable belief that an offence has been committed.
As it would therefore appear that damages awards under the Act may be high, employers should consider introducing a whistle blowing policy as distinct from relying on the company grievance procedure.