LEGISLATIVE PROTECTION FOR
WHISTLEBLOWERS IN BRITAIN
Law and Government Division
18 January 2000
TABLE OF CONTENTS
LEGISLATIVE PROTECTION FOR
WHISTLEBLOWERS IN BRITAIN
"whistleblower" is frequently used to describe an employee who discloses
wrongdoing within an organization, by either the employer or a fellow employee. After
having made a disclosure, the whistleblower may suffer retaliation by being dismissed,
demoted or punished in some other way. The main purpose of whistleblower protection
legislation is to safeguard employees who blow the whistle against these kinds of
employment reprisals. Not only does such legislation encourage whistleblowers to come
forward with information on wrongdoing, but it also discourages wrongdoing because of the
increased risk of being found out.
In Canada, as
in certain other jurisdictions, most notably the United States, a number of statutes,
particularly those covering environmental or occupational health and safety matters,
protect whistleblowers who report misdeeds under the statutes. Governments in Canada,
however, at both the federal and provincial levels, have thus far generally declined to
enact broader whistleblower protection legislation for either public sector or private
sector employees.(1) In the United States, legislation at
the federal level applies to public sector employees; legislation in many of the States
applies primarily to public sector employees but in some cases to private sector employees
Britain is one
example of a Commonwealth jurisdiction where, until recently, whistleblowers were in much
the same position as in Canada; legislation existed to protect whistleblowers in certain
limited situations. However, there was no equivalent to the formal complaint system
established in the United States through specialized whistleblowing legislation. An
observer once described the situation in Britain as "a combination of restrictive
government guidelines and inadequate legal protection [which] conspire to silence any
employee from revealing matters of public concern and leave the employer free to punish
them."(2) Operating under legal constraints, courts
did not generally have the power to protect whistleblowers against employment reprisals.
In response to the limited protection available to legitimate whistleblowers, a number of
support groups and services, such as Freedom to Care and Public Concern at Work, were
established.(3) However, with the coming into force, on 2
July 1999, of the Public Interest Disclosure Act 1998 (hereinafter referred to as
the PIDA 1998), the legal situation regarding whistleblowers in Britain has totally
changed; it appears that they may now be among the best protected in the world. Following
is a description of the legislation which generally sets out the persons who are
protected, with respect to what kinds of disclosures, and in what circumstances.
DESCRIPTION OF LEGISATION
The PIDA 1998
consists of 18 sections, most of which add new sections to, or amend current sections of,
Britains Employment Rights Act 1996(4)
(hereinafter referred to as the ERA 1996). Subject to limited exceptions, the PIDA 1998
protects workers under contracts of employment (i.e., employees, including Crown
servants); those who work personally for someone else (under a "workers"
contract) but who are not genuinely self-employed; homeworkers; certain agency workers;
National Health Service (NHS) professionals such as general practitioners, certain
dentists, pharmacists and opticians; and certain categories of trainees.(5) Generally, the only workers who are not protected under the
legislation are those who are genuinely self-employed, volunteers, police officers, those
ordinarily working outside Britain, and those in the armed forces or in the security or
Section 1, the
main provision of the PIDA 1998, inserts a new Part IVA entitled PROTECTED DISCLOSURES
(comprising sections 43A to 43L) into the ERA 1996. Section 43A describes a
"protected disclosure" as a "qualifying disclosure" that is made by a
worker in accordance with any of sections 43C to 43H. A "qualifying disclosure"
as defined in section 43B(1) contains information that, in the reasonable belief of
the worker, suggests the occurrence now, in the past, or in the future, of one of the
a criminal offence;
a failure to comply with a
a miscarriage of justice;
a danger to the health or
safety of any individual;
damage to the environment;
deliberate concealing of
information tending to show any of the preceding five matters.
purposes of the above, it is immaterial whether the relevant incident took place in the
United Kingdom or elsewhere or whether the law applying to it is the law of the United
Kingdom or any other country (section 43B(2)). As well, worker disclosure is not deemed to
be a qualifying disclosure if by making it the worker commits an offence; an example would
be if the disclosure was prohibited under the Official Secrets Act 1989 (section
43B(3)). Where the information is protected against disclosure because of legal
professional privilege, and the person disclosing it has received the information from
someone seeking legal advice, the disclosure is not a qualifying disclosure (section
In order for a
"qualifying disclosure" to constitute a "protected disclosure" certain
requirements of sections 43C to 43H of the ERA 1996 must be met; these generally have
section 43C of the ERA 1996, a qualifying disclosure is protected provided it is made in
good faith to the workers employer (either directly or in accordance with a
procedure authorized by the employer for that purpose) or to another person who the worker
reasonably believes to be legally responsible for the relevant failure. There is no other
requirement. Presumably, where an employer has an internal, readily accessible procedure
that employees are encouraged to use, concerns are more likely to be disclosed first to
the employer, rather than to an outside party.
section 43D of the ERA 1996, a qualifying disclosure is deemed protected if it is made in
the course of obtaining legal advice. There are no other conditions attached.
disclosure is deemed protected if it is made in good faith by a worker to a Minister of
the Crown where the workers employer is an individual appointed under any statute by
a Minister of the Crown, or a body whose members are so appointed (section 43E).
of the ERA 1996 protects a qualifying disclosure made in good faith by the worker to a
person listed in an order made by the Secretary of State for the purposes of the section,
where the worker reasonably believes that this is the correct person to receive the
allegations and that these allegations are substantially true. The Public Interest
Disclosure (Prescribed Persons) Order 1999(7)
prescribes the appropriate persons and bodies and the matters that can be disclosed to
them (section 43F(2)). A copy of the Order is included as an Appendix to this paper. For
example, breaches of health and safety regulations can be brought to the attention of the
Health and Safety Executive or to the local authority responsible for the enforcement of
health and safety legislation, while environmental dangers can be brought to the attention
of the Environment Agency.
section 43G of the ERA 1996, a qualifying disclosure is a protected disclosure provided
that the worker makes it in good faith and without hope of personal gain, and reasonably
believes that the information disclosed, and the allegations contained in it, are
substantially true. In addition, one or more of the following conditions must be met:
at the time of making the
disclosure, the worker must reasonably believe that he or she would be subjected to
reprisal by the employer if disclosure were to be made to the employer or in accordance
with section 43F (i.e., to a prescribed person or body);
where no person or body has
been prescribed for the purposes of section 43F in relation to the relevant failure, the
worker must reasonably believe that disclosure to the employer would likely result in the
destruction or concealment of the information;
the worker must previously
have disclosed substantially the same information to his or her employer or in accordance
with section 43F (i.e., to a prescribed person or body).
all the circumstances of the case, it must be "reasonable" for the worker to
make the disclosure, having regard to:
the identity of the person
to whom the disclosure is made;
the seriousness of the
whether the relevant failure
is continuing or is likely to occur in the future;
whether the disclosure
breaches the employers duty of confidentiality to any other person;
the action that has or might
reasonably be expected to have been taken if a disclosure was made previously to the
employer or in accordance with section 43F, to a prescribed person or body; and
whether, in making the
disclosure previously to his or her employer, the worker complied with any internal
procedures approved by the employer.
Section 43H of
the ERA 1996 stipulates that a qualifying disclosure is a protected disclosure for
purposes of the provision if:
the worker makes the
disclosure in good faith;
he or she reasonably
believes that the information disclosed, and any allegations contained in it, are
he or she does not make the
disclosure for personal gain;
the relevant failure is of
an exceptionally serious nature (this will be a question of fact in the circumstances of
the particular case and not simply a matter of whether the worker believes the case to be
exceptionally serious); and
in light of all the
circumstances of the case, it is reasonable for the worker to make the disclosure, having
regard, in particular, to the identity of the person to whom it is made.
in an agreement between a worker and his or her employer that precludes the worker from
making a protected disclosure under the Act is void. This includes an agreement to refrain
from instituting any proceedings under the Public Interest Disclosure Act 1998 or
any proceedings for breach of contract.(8)
A worker has
the right not to be subjected to any detriment by his or her employer for having made a
protected disclosure(9) and can file a complaint with an
employment tribunal if subjected to a detriment for such reason.(10) A detriment may take a number of forms, such as denial of promotion,
facilities or training opportunities that the employer would otherwise have made
available. Employees protected by the provisions who are dismissed for making a protected
disclosure may make a claim for unfair dismissal. Workers who are not employees may not
claim unfair dismissal if their contracts have been terminated because they have made a
protected disclosure; however, they can make a complaint that they have been subjected to
employment tribunal finds that an employees complaint of unfair dismissal is
justified, it will order re-instatement or re-employment, or the payment of compensation.(12) Where a worker who is not an employee makes a
complaint that he or she has been subjected to a detriment and the tribunal finds the
complaint to be well-founded, it will make a declaration to that effect and may order the
payment of compensation.(13)
the coming into force of the PIDA 1998, whistleblowers in Britain were not generally
protected against employment reprisals. Operating under legal constraints, British courts
did not have the power to provide such protection. The reason that legislation on the
subject was not enacted until now was apparently because of "fears that it would lead
to an epidemic of disloyal and aggrieved workers ratting on their bosses about
every perceived irregularity."(14) It has been
observed that, in fact, the Act encourages workers to raise their concerns first with
their employers and that it provides no protection for those workers who fail to act
responsibly and reasonably. According to one commentator, "employers can dramatically
reduce the risk that there will be an embarrassing public disclosure by implementing
effective whistleblowing policies, thereby demonstrating to their workers a clear
commitment to eradicate malpractice in the workplace."(15)
legislation has been in force for only a short period of time, it is too early to know the
types of problems that might arise under the Act or what developments in case law could
affect the rights of whistleblowers under the legislation. In any event, the Act appears
to provide much needed legal protection for whistleblowers in Britain by ensuring that
problems are brought to the attention of the appropriate person while at the same time
encouraging whistleblowers themselves to act responsibly.
(1) The writer is aware of only one Canadian jurisdiction
where specific legislation on the subject is in force; see section 28 of New
Brunswicks Employment Standards Act, which applies to both public and private
sector employees. In December 1993, Ontario enacted specific legislation on the subject to
protect public sector employees (Part IV of Ontarios Public Service Act) but
this has never been proclaimed in force.
(2) J. Cooper and D. Green, "Whistleblowers," Solicitors
Journal, 20 November 1992, p. 1166.
(3) As described in: Australia, Senate Select Committee on Public
Interest Whistleblowing, In the Public Interest, 1994, p. 21-4.
(4) 1996 chapter 18: http://www.legislation.hmso.gov.uk/acts/acts1996/1996018.htm.
(5) For a definition of a "worker" for purposes of Part IVA
of the ERA 1996, see section 1 of the PIDA 1998 adding, among other new sections, section
43K to the ERA 1996; also see section 10 of the PIDA 1998 amending section 191 of the ERA
1996 (Crown employment).
(6) See generally, section 11 of the PIDA 1998 amending section 193 of
the ERA 1996; section 12 of the PIDA 1998 amending section 196 of the ERA 1996; and
section 13 of the PIDA 1998 amending section 200 of the ERA 1996.
(7) Britain, Statutory Instruments 1999 No. 1549.
(8) Section 1 of the PIDA 1998 adding section 43J to the ERA 1996.
(9) Section 2 of the PIDA 1998 adding section 47B to the ERA 1996.
(10) Section 3 of the PIDA 1998 amending section 48 of the ERA 1996.
(11) Guide to the Public Interest Disclosure Act 1998.
(12) Ibid; see also section 8 of the PIDA 1998
amending sections 112, 117, 118 and adding section 127B to ERA 1996. Calculation of the
amount of compensation for employees dismissed for making a protected disclosure is done
as prescribed by regulation.
(13) Ibid., see also section 4 of the PIDA 1998 amending
section 49 of the ERA 1996 and placing a limit on the amount of compensation available in
such a case.
(14) C. Camp, "Openness and Accountability in the
Workplace," New Law Journal, Vol. 149, January 1999, p. 46 at p. 50.