Public Interest Disclosure Act 1998 (s.43A - F)
An Act to protect individuals who make certain disclosures of information in the public interest; to allow such individuals to bring action in respect of victimisation; and for connected purposes.
[2nd July 1998]
Section 1 PIDA
1. - After Part 4 of the Employment Rights Act 1996 (in this Act referred to as "the 1996 Act") there is inserted-
43A. - In this Act a "protected disclosure" means a qualifying disclosure (as defined by section 43B) which is made by a worker in accordance with any of sections 43C to 43H.
This section makes the whistleblowing law part of the UK's employment legislation. It does so by inserting the main provisions of the Public Interest Disclosure Act (PIDA) into a new part, Part 4A, of the Employment Rights Act 1996. The first section of Part 4A explains that for the whistleblowing protection to apply (a) the information must concern some wrongdoing (s.43B) and (b) the disclosure must be made in one of more than six ways (s.43C-43H). These key issues are considered in the following pages.
Because PIDA is part of employment law, many of the legal and procedural issues that will be relevant for tribunal claims are to be found in the main body of employment law. While in these annotations we try to summarise how these inter-relate with this whistleblower protection, if any of these consequential issues is not clear you should check a standard employment law text or seek advice from a lawyer or advice agency.
Employment disputes and whistleblowing
Employment legislation sets the framework in which the rights of an employee who believes he has been wronged can be determined and independently reviewed. Consideration of these rights is normally triggered when an employee seeks remedy or redress for harm or damage he believes he has personally suffered or been caused by his employer. Accordingly where an employee is harmed or damaged because he has blown the whistle, he has a claim under this legislation which he can bring in an employment tribunal.
It may be helpful to note that whistleblowing itself does not justify a legal claim by an employee - there can be no PIDA claim until and unless the employer has victimised the employee because he made a protected disclosure. So in considering PIDA it may be worth bearing in mind the distinction that while a grievance or tribunal claim seeks to remedy or redress some harm or damage the employee has personally suffered, whistleblowing is the means by which a worker can alert (or put on notice) the employer or authorities about a wider danger or risk primarily so that it can assess and take what action is appropriate to remove or reduce the danger or risk.
This distinction is also apparent in many of the summaries of PIDA cases cited in and accompanying this text. The point was also considered during the passage of the Public Interest Disclosure Act - Lord Borrie (Hansard HL 5 June 1998, col. 627) - and is also recognised in the ACAS Code of Practice on Disciplinary and Grievance Procedures (September 2000). See further the comments on pages 20 and 21 below.
The Employment Act 2002
This distinction was confirmed and clarified in Parliament when it addressed how these whistleblowing provisions should relate to the statutory dispute resolution provisions in Schedule 2, Part 2 of the Employment Act 2002
These new provisions - which are expected to come into force in spring 2004 - set minimum standards for grievance procedures which will address whether the grievance should be in writing, with whom it must be raised and how and by when the employer should respond. The 2002 Act provides that an employee who does not meet these prescriptions may be barred from bringing a claim based on a grievance he has not previously raised with the employer, and if not will have any compensatory award he receives reduced by between 10-50%.
Parliament and Government made it clear that they did not want these new provisions to undermine the Public Interest Disclosure Act by deterring employees from raising whistleblowing concerns with their managers, the authorities or more generally. Parliamentary consideration of the issues can be found at Grand Committee in Hansard HL 11 April 2002, from col. CWH461 and at Report Stage in Hansard HL 11 June 2002, col. 186-189. As a result, the Bill was amended and the Employment Act 2002 now provides in Schedule 2 that -
(1) The procedures set out in Part 2 are only applicable to matters raised by an employee with his employer as a grievance.
(2) Accordingly, those procedures are only applicable to the kind of disclosure dealt with in Part 4A of the Employment Rights Act 1996 (protected disclosures of information) if information is disclosed by an employee to his employer in circumstances where -
(a) the information relates to a matter which the employee could raise as a grievance with his employer, and
(b) it is the intention of the employee that the disclosure should constitute the raising of the matter with his employer as a grievance.
The intended effect is that in those cases where there may be some overlap between a whistleblowing concern and a grievance - such as on health and safety where the risk may be wholly or exclusively to the employee himself - the procedural requirements of the dispute resolution regime will only apply where the employee intended to raise that issue as a grievance. If in such a case there is any doubt about the employee's intention, the employer would be well advised to ask him what outcome he is seeking.
It is important to note that where an employee has made a protected disclosure and he believes he has suffered a detriment as a result, he should notify his employer and seek its assistance in ending the detriment. If this request is unsuccessful, the Employment Act 2002 provides strong reasons why the employee should consider lodging the issue as a formal grievance with his employer without undue delay.
While Parliament has clarified the relationship between the whistleblowing and forthcoming grievance regimes, it should be stressed that as the 2002 Act does not itself define a grievance this is to be addressed, after consultation, in regulations. While those regulations will be drafted in the shadow of paragraph 15, their detail may yet be relevant to some whistleblowing issues.
Section 43B ERA
Disclosures qualifying for protection
(1) In this Part a "qualifying disclosure" means any disclosure of information which, in the reasonable belief of the worker making the disclosure, is made in the public interest and tends to show one or more of the following- ["is made in the public interest" was inserted into this section by the Enterprise and Regulatory Reform Act 2013 and applies to disclosures made on or after 25 June 2013]
(a) that a criminal offence has been committed, is being committed or is likely to be committed,
(b) that a person has failed, is failing or is likely to fail to comply with any legal obligation to which he is subject,
(c) that a miscarriage of justice has occurred, is occurring or is likely to occur,
(d) that the health or safety of any individual has been, is being or is likely to be endangered,
(e) that the environment has been, is being or is likely to be damaged, or
(f) that information tending to show any matter falling within any one of the preceding paragraphs has been, is being or is likely to be deliberately concealed.
(2) For the purposes of subsection (1), it is immaterial whether the relevant failure occurred, occurs or would occur in the United Kingdom or elsewhere, and whether the law applying to it is that of the United Kingdom or of any other country or territory.
(3) A disclosure of information is not a qualifying disclosure if the person making the disclosure commits an offence by making it.
(4) A disclosure of information in respect of which a claim to legal professional privilege (or, in Scotland, to confidentiality as between client and professional legal adviser) could be maintained in legal proceedings is not a qualifying disclosure if it is made by a person to whom the information had been disclosed in the course of obtaining legal advice.
(5) In this Part "the relevant failure", in relation to a qualifying disclosure, means the matter falling within paragraphs (a) to (f) of subsection (1).
Section 43B sets out the information, which is subject to protection, provided that the particular disclosure meets the other conditions of the Act. It covers a wide class of information, applying to most malpractice and it does not matter whether the person to whom the disclosure is made is already aware of the information: s.43L(3).
It is important to note that these provisions apply to all such information, whether or not it is confidential. However this does not mean that trade secrets can be disclosed lightly, as is clear from Aspinall v MSI Mech Forge. There the Employment Appeal Tribunal (EAT) held that, while a disclosure about health and safety had been protected, the employer's consequent inquiry into a perceived breach of its highly secret manufacturing process had not caused Aspinall's resignation.
The degree of belief - the requirement that the worker has a 'reasonable belief' means that the belief need not be correct but only that the worker held the belief and it was reasonable for him to do so. Accordingly, it can be a qualifying disclosure if the worker reasonably but mistakenly believed that a specified malpractice was occurring: see Darnton v University of Surrey. There the EAT observed that a qualifying disclosure might include what a worker had seen or heard or what had been reported to him by others. It also held that an assessment of the factual accuracy of the concern would be no more than an important tool in determining whether the belief was reasonable. Equally, if some malpractice were occurring which did not involve a breach of a legal obligation, the disclosure would still qualify if the worker reasonably believed it was such a breach. The test in the Act is lower than a straight "reasonable belief" that the malpractice is occurring - due to the phrase "tends to show" - and the test is more akin to one of reasonable suspicion. This approach was taken in the Employment Tribunal [ET] decisions in Brown v Welsh Refugee Council and Leonard v Serviceteam where the concerns tended to show the possibility of fraud and corruption respectively. A similar approach was taken in Frost v Boyes where the ET held that reporting on rumours came within this section. However the worker's belief should still have a reasonable basis, see Donovan v St John's Ambulance where the Applicant had worked himself into such a state of high suspicion that his concern had no reasonable basis. See also Chubb v Care First Partnership where a disclosure was held to be qualifying even though it had been exaggerated.
Malpractice - for the information to come within the definition of a qualifying disclosure, it matters not whether the malpractice was past, present or prospective. Nor does it matter whether the concern related to particular conduct or to a state of affairs.
It will be noted that there is scope for considerable overlap between the six categories and that most examples of what will normally be considered to be malpractice are covered. As examples of the limits of this approach, it should be noted that ETs have held that the following concerns are not included: a nun visiting psychiatric patients while wearing a habit (Bright v Harrow & Hillingdon NHS Trust); a decision not to fill a vacant post (Douglas v Birmingham CC); the routine concerns of an accountant which arise in the performance of day to day duties (Bill v Morgan and Mustapha v ProTX).
As to the scope of several of the categories of information, the following points should be noted:
Failure to comply with a legal obligation includes a breach of any statutory requirement; contractual obligation; common law obligation (e.g. negligence, nuisance, defamation); or an administrative law requirement. Examples from ETs include a breach of a duty of care owed to a resident in a care home (Chubb v First Care Partnership) and a breach of consumer rights (Staples v Royal Sun Alliance). However, a concern about a failure to comply with an accountant's professional obligation in itself was held not to qualify (Butcher v Salvage Association). As to government and public authorities, this subsection would include an official's reasonable belief that a decision of the authority could be overturned at judicial review (for example because of a procedural impropriety). It is submitted it would also cover the concern of a public servant that he had been asked to act in a way which breached a provision of the Civil Service Code (e.g. the requirement to act with "integrity, impartiality and honesty"). The Government confirmed by letter to Richard Shepherd MP that compliance with such codes is a contractual requirement binding on public servants.
Private concerns - There has been some comment about the decision in Parkins v. Sodexho Ltd where the EAT held that there had been an error in law when, on considering a claim for interim relief, the tribunal had said that a disclosure about a breach of the applicant's own employment contract did not come within s.43B(1)(b). Parkins, who had three months service, had claimed he had been dismissed for raising concerns about health and safety and also about his own employment contract. He lost his claim for interim relief and was ordered to pay £500 in costs as the claim was deemed frivolous and vexatious. The EAT construed section 43B(1)(b) in the broad sense in which it was drafted and allowed the appeal and remitted the application for interim relief to a fresh tribunal.
The effect is that dismissing or victimising an employee because he has raised a concern in good faith about his own employment contract can be the basis of a PIDA claim. Bearing in mind that the existing protection in section 104 ERA (against reprisals for asserting in good faith a statutory right) is rarely used and uncontroversial, the extension through this EAT decision of this same principle to non-statutory rights should be kept in perspective. It can only be applied where someone is victimised because he has questioned the legality of his employment. Where the actual or alleged breach he is concerned about continues, and there is no additional reprisal in response to the employee's question or challenge, then a PIDA claim cannot successfully be made. While some commentators have questioned the application of PIDA to what may essentially be a private - rather than a public - concern, others have noted that there is a legitimate public interest in employees being able to safely question the legality of their own employment arrangements in the workplace, rather than wait to litigate the issue when the employment relationship has ended.
Miscarriage of justice would include matters likely to lead to a wrongful conviction, such as reliance on unsound forensic techniques, failure to disclose evidence to the defence, or perjury (though this would come both under this heading and that covering crimes). As to cases at common law, reference may be made to the case of Lion Laboratories v Evans  QB 526 on suspect breathalyser equipment. The potential application of this provision will be significantly greater once section 43KA of the ERA (inserted by the Police Reform Act 2002), bringing police officers within PIDA, has come into force. At the time of writing this is expected to be April 2004.
Health and safety risks apply whether they threaten a worker or any individual. As such, this provision includes risks to patients in a hospital, passengers on a train, children in care, consumers of electrical products or customers in a restaurant. It should be noted that the Act leaves in place the existing provisions in the ERA (ss.44 and 100) on victimisation for health and safety matters.
'Cover ups' - this category provides that qualifying disclosures include information not only about the substantive malpractice, but information which tends to show the deliberate concealment of information about the malpractice. A concern that a care plan had been altered as to the drugs dispensed in an old people's home came under this head, see the ET decision in Chubb v First Care Partnership.
The Act applies regardless of the geographical location of the malpractice and subsection (1) applies regardless of whether the offence or breach of a legal obligation arises under UK law or the applicable law of another country. See Bhatia v Sterlite Industries where the disclosures concerned breaches of Australian and US listing rules. Additionally it should be noted that, as explained in the Note to s.12 below, the removal of s.196 of the Employment Rights Act 1996 means that issues of jurisdiction are now governed by the principles of private international law.
Where the disclosure of the information is itself a crime (e.g. it is held to breach the Official Secrets Act), it does not qualify. First it should be noted that raising such a concern formally within Whitehall or with the Civil Service Commissioners would not constitute a breach of (or disclosure under) the Official Secrets Act and so would qualify for protection in any event.
Where the disclosure was unauthorised and criminal proceedings were in progress or anticipated, it is expected that an employment tribunal would postpone any hearing under this Act. If the worker were acquitted at trial, he would then be able to invoke PIDA's protection. Where no such proceedings were in prospect, the standard of proof the tribunal should apply is effectively a criminal one. This was the view of Lord Nolan (Hansard HL 5 June 1998, col. 614) and Lord Borrie QC (ibid., cols. 616 / 7), both of whom based their comments on the decision in In Re A Solicitor  2 AllER 335. The Government spokesman, Lord Haskell, (ibid., col. 616), while pointing out that the effects of such a finding would not be the same as in a criminal court, stated that a 'high standard of proof' would be required. Reference may also be made to Hornal v Neuberger (1957) 1QB 76.
This provision means that if a legal adviser cannot be compelled in court to give evidence about a matter, neither he nor the staff in his office can make a protected disclosure about it. Naturally, this does not affect the lawyer's ability to make disclosures on the instructions of a worker who is his client. This provision needs to be considered along with s.43D below.
"disclosure" : s.43L(3)
"worker" : s.43K(1)
(1) A qualifying disclosure is made in accordance with this section if the worker makes the disclosure in good faith- ["in good faith" was omitted by the Enterprise and Regulatory Reform Act 2013 and is not applicable to disclosures made on or after 25 June 2013]
(a) to his employer, or
(b) where the worker reasonably believes that the relevant failure relates solely or mainly to-
(i) the conduct of a person other than his employer, or
(ii) any other matter for which a person other than his employer has legal responsibility, to that other person.
(2) A worker who, in accordance with a procedure whose use by him is authorised by his employer, makes a qualifying disclosure to a person other than his employer, is to be treated for the purposes of this Part as making the qualifying disclosure to his employer.
This section is, in the words of Lord Borrie, "absolutely at the heart" of the Act (Hansard HL, 19 June 1998 cols. 1801/2) as it emphasises the vital role of those who are in law accountable for the conduct or practice in question. It does this by helping ensure that they are made aware of the concern, so they can investigate it. It sets out the wide circumstances in which a worker is protected if he raises the concern with his employer or the person responsible. No additional evidential test applies in this section beyond that in s.43B, that the worker 'reasonably believes the information tends to show' the malpractice.
Good faith -- this requirement also appears in ss.43E to 43H. A disclosure is made in good faith if it is made honestly, even where it is made negligently or without due care. This interpretation was recently endorsed by the Government in its formal response to the Kennedy Inquiry into children's heart surgery at the Bristol Royal Infirmary (see Hansard HC, 17 January 2002, col. 508). However, subsequently repeating a grossly overstated concern without regard to assurances that the concern was misconceived has been held by an ET as not in good faith, see PC v CCC.
Where the disclosure is demonstrably made for an ulterior and undesirable purpose (e.g. something approaching blackmail), it is submitted it would not be made in good faith. This approach has been taken in several ETs: Aziz v Muskett & Tottenham Legal Advice Centre where the disclosure made as a means to exert pressure for a pay rise; Hassan v YAFA where the concern was known to be untrue and disclosure was for an ulterior motive; and in Gulwell v Consignia where the purpose was to secure the Applicant's own way by bullying tactics. See also the comments in the EAT decision in Darnton v University of Surrey.
It should be pointed out that the issue of 'good faith' also arises in discrimination legislation and in the provisions in s.104 ERA on the assertion of statutory rights. As to good faith generally, see Central Estates v Woolgar (1971) 3 AllER 647 and Medforth v Blake (2000) Ch 86 where the Vice Chancellor said "In my judgement the breach of a duty of good faith should in this area as in all others require some dishonesty or improper motive, some element of bad faith to be established".
To his employer - this would, it is submitted, include a disclosure to any person senior to the worker, who has been expressly or implicitly authorised by the employer as having management responsibility over the worker. It would not cover a disclosure to a colleague. As to whistleblowing procedures, see the Note on subs. (2) below.
This subsection protects, for instance, a nurse employed by an agency who, in the care home where she works, raises a concern about malpractice. It would also protect a worker in an auditing firm who raises a concern with the client. It would also cover someone who works for a local authority highway contractor raising a concern with the local authority that the performance of the contract exposes the authority to negligence claims from injured pedestrians. This was the approach taken in Azzaoui v Apcoa Parking where serious concerns about the way parking tickets were issued by a contractor were raised with the local authority.
It is important to note that while a disclosure under subsection 1(b) is protected, (a) it does not amount to raising the matter with the employer for the purposes of a subsequent wider disclosure (under s.43G); (b) this Act does not place any obligation on the person responsible to respond to the concern; and (c) if the worker is victimised for making a disclosure under this subsection, any claim he may have is against his employer and not against the person to whom he made this disclosure.
Where the organisation has a whistleblowing procedure which authorises raising the concern with someone other than the employer (for example authorising a disclosure to a health and safety representative, a union official, its parent company, a retired non-executive director, its lawyers or external auditors, or to a commercial reporting hotline) a disclosure to that person will be treated as if it were a disclosure to the employer. See Brothers of Charity Services Merseyside v Eleady-Cole (EAT) where Mr Eleady-Cole reported misuse of drugs and the internet at his workplace to a confidential telephone support service (commonly known as an Employee Assistance Programme). This service was offered to employees of the Brothers by an independent agency and it was a term of the agreement that the agency would report to the Brothers any allegation of criminal activity, while preserving the confidentiality or anonymity of the informant. The EAT held that such a procedure was an authorised one within PIDA and that "if despite the attempts to maintain confidentiality, the employer subsequently became aware which employee had been responsible for the matters coming to light and that employee was then immediately dismissed for that reason, we have little doubt that such a dismissal [would be] contrary to section 103A". See also Chubb v Care First Partnership where an ET held that a disclosure to local authority inspectors about a care home was protected as the employer's policy statement had authorised such communications.
It should be noted that the reasonableness of the response to the concern is relevant in determining whether a subsequent wider disclosure may be protected: s.43G(3)(e). While the Act does not require employers to set up whistleblowing procedures, a worker who makes a wider, public disclosure is more likely to be protected if there was no such procedure, or he was unaware of it, or it was not reasonable to expect him to use it: s.43G(3)(f). For key components of such whistleblowing policies see the comment on p. 9.
Grievances and whistleblowing - As indicated in the comments on the Employment Act 2002 on p. 13 there can be some confusion between grievances and whistleblowing. Essentially whistleblowing is the raising of a concern about a danger or risk so that it may be investigated, while a grievance seeks redress for a wrong done to oneself. The nature and relevance of this difference is also apparent from the Statutory Code of Practice on Disciplinary and Grievance Procedures produced by ACAS (where paragraph 47 confirms that whistleblowing procedures should not be confused with grievance procedures).
This distinction is also apparent from Chambers' dictionary which defines
"cause or source of grief; ground of complaint; condition felt to be oppressive or wrongful; distress; burden; hardship"
"giving information (usually to the authorities) about illegal orunderhand practices".
"disclosure" : s.43L(3)
"employer" : s.43K(2)
"qualifying disclosure" : s.43B
"relevant failure" : s.43B(5)
"worker" : s.43K(1)
A qualifying disclosure is made in accordance with this section if it is made in the course of obtaining legal advice.
This provision enables a worker to seek legal advice about a concern and to be fully protected in doing so. It should be noted that this is the only disclosure within the Act which does not have to be made in good faith to be protected. This signals that someone with a concern who is intending to disclose it solely for some ulterior motive or leverage is safely able to obtain advice that such conduct jeopardises the protection in PIDA.
The lawyer, in turn, cannot of his own volition make a protected disclosure of the information: s.43B(4). Of course, he can make such disclosure as the client instructs him to make on his behalf. As such, the disclosure will be judged as made by the client and it will only be protected if it is made in accordance with the other provisions of this Act. In terms of helping the client to raise the matter internally with the employer, the experience of Public Concern at Work is that this is best done by the client himself, rather than by the lawyer as this may unnecessarily suggest an adversarial stance. If the client does need some reassurance or backing, this may better be achieved by his mentioning that he has sought, and is following, legal advice.
While it is expected that, where a union is recognised in a workplace, disclosures to trade union officials will be protected under the whistleblowing procedures in s.43C(2), the implications of this provision (and others) for general disclosures to union officials was considered at some length in the House of Lords at the Committee and subsequent stages. Lord Borrie did make the point (Hansard HL 5 June 1998, col. 624) that a disclosure by a union member for the purpose of obtaining legal advice from the union solicitor will, in any event, be protected under this section.
"disclosure" : s.43L(3)
"qualifying disclosure" : s.43B
A qualifying disclosure is made in accordance with this section if-
(a) the worker's employer is-
(i) an individual appointed under any enactment [including any enactment comprised in, or an instrument made under, an Act of the Scottish Parliament] by a Minister of the Crown [or a member of the Scottish Executive], or
(ii) a body any of whose members are so appointed, and
(b) the disclosure is made in good faith to a Minister of the Crown [or a member of the Scottish Executive]. ["in good faith" was omitted by the Enterprise and Regulatory Reform Act 2013 and is not applicable to disclosures made on or after 25 June 2013]
Section 43E provides that workers in Government appointed bodies are protected if they report their concerns in good faith to the sponsoring Department rather than to their employer. Legally a disclosure to a Department is what this section refers to as a disclosure to a Minister. This section provides a statutory framework for the recommendations that the Committee on Standards in Public Life made in its First Report (May, 1985) Cm 2850-I pp 60 and 91-92 and Second Report (May, 1996) p.22.
The words in square brackets - effective as from 27th July 2000 - provide that workers in government bodies appointed under an Act of the Scottish Parliament are also able to disclose matters falling under this Act to a member of the Scottish Executive (SI 2000 No. 2040).
This section applies to bodies where the employer is an individual appointed under statute by a Minister (e.g. the utility regulators), or where one or more of the members of the body are appointed by a Minister (e.g. NHS Trusts, tribunals and non-departmental public bodies). While no requirement is placed on the Minister to respond to the concern, it does strengthen the accountability of Ministers for the conduct of bodies for which they are responsible. It is also reasonable to expect that they will ensure the matter is investigated and any malpractice corrected.
As under section 43C(1)(b), a disclosure under this section is not treated as one to the employer for the purposes of any subsequent, wider disclosure (s.43G). It is also important to note that if the worker is victimised for making a disclosure under this subsection, any claim he may have is against his employer and not against the Minister to whom he made the disclosure.
Good faith : see note on s.43C(1)
"disclosure" : s.43L(3)
"employer" : s.43K(2)
"qualifying disclosure" : s.43B
"worker" : s.43K(1)
(1) A qualifying disclosure is made in accordance with this section if the worker-
(a) makes the disclosure in good faith to a person prescribed by an order made by the Secretary of State for the purposes of this section, and ["in good faith" was omitted by the Enterprise and Regulatory Reform Act 2013 and is not applicable to disclosures made on or after 25 June 2013]
(b) reasonably believes-
(i) that the relevant failure falls within any description of matters in respect of which that person is so prescribed, and
(ii) that the information disclosed, and any allegation contained in it, are substantially true.
(2) An order prescribing persons for the purposes of this section may specify persons or descriptions of persons, and shall specify the descriptions of matters in respect of which each person, or persons of each description, is or are prescribed.
Section 43F protects a worker who makes a qualifying disclosure to a person prescribed by the Secretary of State for Trade and Industry by Order (SI 1999/1549). There is a separate list for Northern Ireland (SI 1998/1763 (NI 17).
Where a regulator has been prescribed, it is important to note that there is no requirement that (a) the particular disclosure was reasonable; (b) the malpractice was serious; nor (c) the worker should have first raised the matter internally. However, the worker must meet a higher evidential burden than in s.43C, which protects internal whistleblowing - see note on subs. (1)(b)(ii) below - and the disclosure must be made in good faith.
Decisions on disclosures under this section suggest that employment tribunals find the facts more straight forward than those in many of the cases under section 43C - see for example Bailey v Arrow Consultants, Robinson v Hartland Forest Golf Club and Vaux & McAuley v Bickerton. See also the EAT decision in Hossack v Kettering Borough Council and that of the Court of Session in Miklaszewicz v Stolt Offshore.
The following are examples of some of the key regulators prescribed under the Act:
- Health & Safety risks: HSE and relevant local authority
- Utilities/Sectors: OFTEL, OFGEM, OFWAT, Rail Regulator, Charity Commission
- Financial Services: Financial Services Authority, HM Treasury (insurance), Occupational Pensions Regulatory Authority, Serious Fraud Office
- Tax irregularities: Inland Revenue, Customs & Excise
- Public finance: National Audit Office, Audit Commission, Audit Scotland
- Company law: Department of Trade & Industry
- Competition & consumer issues: Office of Fair Trading and relevant local authority
- Environmental issues: Environment Agency
A complete list of the prescribed persons for England, Scotland and Wales and for Northern Ireland is available here.
The preferential position this section affords to disclosures made to prescribed regulators over other external disclosures reflects the position under the law of confidence. For example, in In Re A Company (1989) 3WLR 265, Mr Justice Scott, as he then was, said:
"It may be the case that the information proposed to be given, the allegations to be made by the defendant to FIMBRA (Commentator's note: whose functions are now performed by the Financial Services Authority), and for that matter by the defendant to the Inland Revenue, are allegations made out of malice and based upon fiction or invention. But if that is so, then I ask myself what harm will be done. FIMBRA may decide that the allegations are not worth investigating. In that case no harm will have been done. Or FIMBRA may decide that an investigation is necessary. In that case, if the allegations turn out to be baseless, nothing will follow from the investigation. And if harm is caused by the investigation itself, it is harm implicit in the regulatory role of FIMBRA."
It should be noted, however, that not all regulators are prescribed and that disclosures to such other regulators (and incidentally those to the police) will need to satisfy the provisions in ss.43G or 43H if they are to be protected.
An amendment was made to this clause in Committee (Parliamentary Debates HC, Standing Committee D, 11 March 1998, col. 8) for the purposes of enabling classes of persons to be prescribed so as to ensure the possibility that health and safety representatives might be prescribed, should it transpire that employers were not including them within internal reporting procedures. Other classes of persons capable of being prescribed under this section could include certain trade union officials (Hansard HL, 5 June 1998, col. 623).
If it is not clear whether the matter should be raised internally or with a prescribed person, one practical approach to bear in mind will be for the worker or his adviser to contact the particular regulator informally first. They can then check if it is prescribed and, without initially identifying the employer, discuss the nature of the concern and explore what action the regulator considers appropriate. If the matter is to be pursued internally, the worker may wish to point out that he has spoken to the regulator without identifying his employer.
As to "good faith", see note on s.43C(1), supra.
The worker must reasonably believe that the malpractice falls within the matters prescribed for that regulator.
To be protected under this section, the worker must reasonably believe "that the information disclosed, and any allegation in it, are substantially true". While this is a higher evidential burden than that required for raising the concern internally (under s.43C), provided the belief was reasonable the worker will not lose protection if his belief was mistaken - see Holden v Connex (where the ET rejected Connex's claim that Holden had not met this test, in part because it had failed to produce evidence that the concerns were not true and also because it had failed to respond when Holden had raised the concern internally). The distinction between the evidential test under s.43C and under this section was considered by the EAT in Darnton v University of Surrey. It should also be noted that this subsection refers to a reasonable belief that any allegation made is also substantially true. This means that it will be advisable for any worker making a disclosure other than to his employer or a minister, to avoid exaggerating the nature of any wrongdoing and to let the facts speak for themselves.It should be noted that if the concern had been raised internally beforehand, the reasonableness of the worker's belief would be expected to take account of any response he then received.
"disclosure" : s.43L(3)
"qualifying disclosure" : s.43B
"relevant failure" : s.43B(5)
"worker" : s.43K(1)