Animal rights activism often involves exposing wrongdoing and malpractice, but what can a person do if they find out their employer; or just someone they know of through work, is the one committing the wrong? ‘Whistleblowing’ is sometimes the only way such information can be brought into the public domain, or even to the attention of a relevant authority with the power to remedy the situation.
With the usual caveat that a post like this can never be a substitute for individual legal advice, here we briefly examine the law pertaining to whistleblowing.
Public Interest Disclosure Act 1998
The Public Interest Disclosure Act 1998, often referred to as PIDA, provides some measure of protection for whistleblowers. It applies to ‘workers’; and workers is defined quite broadly. It would apply to agency staff for example.
The Act states that no one should suffer a ‘detriment’ as a consequence of making a protected disclosure. Detriment is any form of negative treatment; from being fired to just being ostracised.
People who do suffer a detriment are able to bring a claim under the Employment Rights Act. This permits a range of remedies, from reinstatement to financial compensation.
What is a protected disclosure?
There needs to be a “disclosure” within the meaning of the Act;
It must be a “qualifying disclosure”;
The disclosure must be made to a particular type of person or organisation.
What is a qualifying disclosure?
Legality or Morality?
The Act seems to be concerned with criminal wrongdoing. However Tribunals do seem to be becoming more receptive to the idea that moral or ethical failures could also be the subject of a qualifying disclosure.
The Act permits disclosure were there is a risk of “exceptionally serious failure”. What amounts to such is dealt with on a case by case basis. Generally, though, any disclosure that is in the general public interest (which is not the same as ‘of interest to the public) will be protected so long as the person does not make the disclosure for personal gain. Whom is told will be a relevant factor. A disclosure to the police or a regulator may be warranted, where a tip-off to the press would not.
Generally, disclosure must be made to one of the following types of people or organisations:
Employer includes anyone senior to the person disclosing, or any other person nominated by the employer. This could include a Health and Safety Representative, or a Union official.
Where the wrongdoing is the responsibility of the employer, disclosure is permitted to an appropriate third party; such as an auditor or even a former director of the company, for example.
If a disclose has been made to one of the above and no remedial action has been taken, or the person making the disclosure reasonably believes they would suffer a detriment for doing so; then they may make the disclosure to some other organisation or person; so long as they do not do so for personal gain.
Facts, not opinion
The disclosure must relate to a factual situation. Merely expressing a negative opinion as to the conduct of the employer would not be protected.
Allegations can be Information
The wrongdoing need not be established or proven. A person who reported that there was a rumour at work that the company was involved in dangerous practices might be protected, even if it transpired that the rumour wasn’t true.
The person making a disclose of a criminal activity need not specify exactly which law is being broken. A general layperson’s assessment of the activity would be enough. The protection also applies where a person reasonably believes an activity amounts to a crime; even if the activity is not actually an offence in law.
It is only the disclosure that is protected; not the way the information was obtained. So, if the information was obtained illegally, or even in breach of employment contract, it might not be unlawful to take disciplinary action over that.
There is no longer a requirement that the disclosure be made in good faith. A disgruntled employee who made the disclosure just to cause trouble for their bosses would still be protected.
Any award of damages, though, could be adjusted to take into account the motivation behind the disclosure.
The wrongdoing need not be by the employer. Disclosures relating to third parties, such as suppliers or subcontractors, are also protected.
It will not be a breach of a non-disclosure agreement to make a protected disclosure, and any clause seeking to prohibit this would be invalid and unenforceable.
Detriment is widely defined. It is not limited to dismissal. Any negative consequences would count. A claim can also be brought against any co-worker of agent or the employer who subjects the person to a detriment.
Common law public interest defence
The Act applies to a wide variety of workers. Some people, however, are excluded from its protections. They include police officers and people working in the intelligence and security services.
There is, however, a common law public interest defence to ‘whistleblowing’. Further, people have Article 10 rights under the European Convention of Human Rights to free speech. It is a breach of Article 14 of the convention to treat people differently merely because of ‘status’.
Thus, recently, a judge was able to bring a successful whistleblowing claim, despite being an ‘office holder’ rather than a worker as defined by the Act.
It would be interesting to see if other normally excluded persons could derive protection under the same principles; such as government employees in sensitive positions.
Barrister, practicing from chambers in the south west and London
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