WHISTLE WHILE YOU WORK: recent developments in the protection given to whistleblowers under UK law

by Lucy Duane on March 16, 2013

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Whistleblowing has been a prominent feature in the headlines recently and public enquiries and scandals in many sectors have exposed the current protection for whistleblowers to scrutiny. Calls for change have intensified since Gary Walker, the former Chief Executive of the United Lincolnshire Hospitals NHS, hit the headlines as he was “gagged” from raising concerns about poor patient care and waiting time infringements at the Trust.

Some recent developments of note are:

1. The Enterprise and Regulatory Reform Bill 2012-13, which will soon pass into law, proposes several amendments to whistleblowing laws;

2. Whistleblowing charity, Public Concern at Work, has launched an independent Whistleblowing Commission to review the current protection afforded to whistleblowers and to make recommendations for change;

3. A recent EAT decision raises important issues in the NHS “gagging clause” saga.

In brief, what is whistleblowing?

Under the current law, whistleblowing occurs when a worker discloses in good faith genuine concerns about illegal, unethical or dangerous practices in their place of work (a “protected disclosure”). The framework of whistleblower protection is set out in the Public Interest Disclosure Act 1998 (“PIDA”) and is incorporated into the Employment Rights Act 1996 (“ERA 1996”).

As long as certain criteria are met, whistleblowers are protected. It is unlawful for an employer to subject a worker to any detriment (e.g. disciplinary action, reduction in wages) on the ground that they have made a protected disclosure and a dismissal will be automatically unfair if the reason, or principal reason, for the dismissal is that the individual made a protected disclosure. The same applies to selection for redundancy.

There is no financial cap on compensation in whistleblowing claims, and no requirement for a minimum period of service.

1. Enterprise and Regulatory Reform Bill 2012-13 (“ERRB”): amendments to whistleblowing laws

The ERRB proposes the following amendments to whistleblowing laws:

  • The “good faith” requirement for a protected disclosure will be removed.
  • Tribunals will be given a new power to reduce compensation by up to 25% if the disclosure is not made in good faith (effectively the test of good faith will be transposed from the liability to the remedy stage).
  • Whistleblowers will only be protected if they reasonably believe that disclosure is in the “public interest” (reversing the effect of Parkins v Sodexho).
  • Employers will be vicariously liable for detriments caused to a whistleblower by fellow workers (closing the gap highlighted in NHS Manchester v Fecitt) unless the employer can demonstrate that they have taken all reasonable steps to prevent such detrimental action.
  • The Government will have the power to widen the definition of worker by secondary legislation should it decide that this is necessary.

It remains to be seen whether the amendments, in particular the “public interest” test, will prevent departing individuals avenging personal workplace dissatisfaction (thought by some to be an abuse of whistleblowing protection) whilst also affording adequate protection for genuine whistleblowers.

Notably, there is no definition of what is in the “public interest”. The tribunals and courts that will interpret and apply the “public interest” test will therefore play a key part in determining the future scope of whistleblowing protection.

2. Public Concern at Work (“PCAW”) has launched an independent Whistleblowing Commission to undertake a review of PIDA

Some have voiced concerns that whistleblower protection in PIDA is not fit for purpose and appears to be failing to protect those who speak out against their employers from being victimised, harassed and even sacked. Indeed, Lord Touhig, who was involved in the drafting and consultation stages of the original bill, is amongst those who call for PIDA to be thoroughly reviewed to ensure it offers strong enough protection and gives whistleblowers the support they need. The headlines regarding the NHS “gagging clauses” have intensified calls for change.

On 19 February 2013, the whistleblowing charity, PCAW (which was also involved in the establishment of PIDA) launched an independent Whistleblowing Commission to investigate whether PIDA is adequately protecting whistleblowers. One of the members of the Commission is Gary Walker, the “gagged” former Chief Executive of the United Lincolnshire Hospitals NHS.

The Commission is overseeing a public consultation process to assess different aspects of whistleblowing, including:

  • The effectiveness of current legislation.
  • The role of regulators.
  • The current rewards for whistleblowing.
  • How tribunals are protecting whistleblowers and society at large.

The Commission’s report is expected to be produced in November 2013.

3. Onyango v Berkeley: whistle while you work, and after

Until the appellate case of Onyango v Berkeley (t/a Berkeley Solicitors) UKEAT/0407/12, the question of whether or not a disclosure made after employment ends can be a protected disclosure had not been dealt with directly. The EAT in Onyango v Berkeley had “no hesitation” in accepting that such a disclosure could be protected.

Why?

Worker and employer are defined in section 230, ERA 1996 as those who have entered into, work under or have ceased to be in the necessarily contractual relationship. Since an employee could be subjected to a detriment post-termination, “as a matter of pure construction” the EAT could see no reason to limit a disclosure to the duration of the employment.

This decision continues the trend of giving a wide interpretation to the law on the timing of protected disclosures. The law now provides that a whistleblower can be protected whether the protected disclosure was made:

  • During employment with the respondent employer.
  • During employment with a previous employer (BP plc v Elstone and another [2010] IRLR 558 (EAT)).
  • After employment with the respondent employer has terminated (Onyango v Berkeley (t/a Berkeley Solicitors) UKEAT/0407/12).
  • Before the whistleblowing legislation came into force (Miklaszewicz v Stolt Offshore Ltd [2002] IRLR 344).

A detriment is also actionable whether it occurs during or after termination of employment (Woodward v Abbey National Plc [2006] IRLR 677 (CA)).

What does this mean for NHS “gagging clauses”?

Health Secretary, Jeremy Hunt, has stated this week that “gagging clauses” which prevent NHS whistleblowers raising concerns about patient safety are to be banned. It is unclear whether this ban is to have retrospective effect and arguably the ban is superfluous given the Onyango v Berkeley decision, though it will prevent such clauses being included in settlement and compromise agreements as (an unenforceable) deterrent.

The Trust’s solicitors have reportedly argued that Mr Walker breached the terms of a confidentiality clause in his compromise agreement, by blowing the whistle on the Trust in an interview to the press. Following Onyango v Berkeley, a disclosure made after employment ends can be a protected disclosure and Mr Walker’s disclosure will therefore come under the scope of whistleblower protection.

Additionally, there is a possible argument against the Trust that the “gagging clause” in Mr Walker’s compromise agreement is unenforceable. Section 43J of PIDA makes it clear that any contractual clause that prevents a worker from raising a public interest concern is unlawful:

“(1) Any provision in an agreement to which this section applies is void in so far as it purports to preclude the worker from making a protected disclosure.

(2)This section applies to any agreement between a worker and his employer (whether a worker’s contract or not), including an agreement to refrain from instituting or continuing any proceedings under this Act or any proceedings for breach of contract.”

Section 43J “applies to any agreement between a worker and his employer”. Given that the ERA 1996 definition of worker and employer includes a former worker and former employer, the section covers settlement and compromise agreements whether entered into during employment or afterwards. Arguably therefore, the “gagging clause” that attempts to silence Mr Walker is unenforceable.

Employment 101 is a UK Employment Law Blog, written by Lucy Duane, a Trainee Solicitor and Cambridge University Law Graduate.

Lucy Duane
I am a qualified Employment Lawyer with experience advising clients on both contentious and non-contentious employment law matters. I am currently an Associate at Fasken Martineau LLP. For more blog posts visit: www.employment101.co.uk Please follow me on Twitter: @Employment_101
Lucy Duane
Lucy Duane

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