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Legal Updates

On this page we try and keep readers up-to-date with significant PIDA decisions and developments. We recommend that the material here is read with the practical guide and information in the section on the Law. For an overview of the law see our report - Where's Whistleblowing Now?

HOUSE OF LORDS BLOCKS RESTRICTIONS TO JUDICIAL REVIEW

The government was defeated in the House of Lords on a number of proposals to restrict access to judicial review. The government's plans would have substantially limited charities' and NGOs' ability to intervene in public interest cases.

As a result of the vote "third sector organisations intervening in judicial review processes will not be forced to pay the costs incurred by other parties as a result of their interventions."

PCaW with other civil society groups contributed to a joint briefing on the issues.

GOVERNMENT PRODUCES GUIDANCE ON PRESCRIBED PERSONS

The Government has produced the first ever comprehensive list of bodies prescribed under section 43F of the Public Interest Disclosure Act 1998.

ENTERPRISE AND REGULATORY REFORM ACT 2013 RECEIVES ROYAL ASSENT

The Enterprise and Regulatory Reform Act (ERRA) received Royal Assent on 25 April 2013 which includes major changes to employment law which will impact considerably on whistleblower protection:

See errb-gets-royal-assent-pdf for our full briefing.

LLP PARTNERS AND THE SCOPE OF PIDA

In Clyde & Co LLP v Bates Van Winkelhof the Court of Appeal held that Bates Van Winkelhof could not pursue a whistleblowing claim because Limited Liability Partners were not workers for the purposes of PIDA. The Supreme Court has given permission to appeal. Winkelhof contends that she was ejected from the firm after blowing the whistle while working in Tanzania.

WHISTLEBLOWING AND CONVENTION RIGHTS: FREEDOM OF EXPRESSION

The ECtHR found in the case of Heinisch v Germany that where a whistleblower is dismissed this could amount to a breach of the right to freedom of expression under Art 10 ECHR unless it was “prescribed by law, pursues a legitimate aim and is necessary in a democratic society for achievement of such an aim” and in particular, whether the interference was a proportionate response to the aim pursued. In this case the applicant was dismissed for distribution of a leaflet that outlined poor standards of care at a nursing home for the elderly, and her subsequent mistreatment for raising the issue. Under the proportionality test the court said it was necessary to consider; the public interest in the information, whether there were alternative means of remedying the wrong-doing, the authenticity of the information, whether the applicant acted in good faith, the damage suffered by the employer and an analysis of the penalty imposed on the applicant.

FUTURE LOSSES IN DISCRIMINATION CASES

The Court of Appeal in the case of Wardle v Credit Agricole Corporate and Investment Bank (Calyon) [2011] EWCA Civ 545 , examined the role of future losses in discrimination cases (in this case Mr Wardle was claiming race discrimination). The Court of Appeal said in the vast majority of future loss cases tribunals should start by "assessing the loss up to the point where the employee would be likely to obtain an equivalent job” not when they would be “sure” that this would be the case.

CAUSATION & BURDEN OF PROOF

The Employment Appeal Tribunal found in the case of Fecitt and others v NHS Manchester that what amounts to causation in cases of victimisation in discrimination claims is the same in victimisation for whistleblowing. The Court held that once less favourable treatment amounting to a detriment was shown to have occurred following a whistleblowing disclosure, it is for the employer to show the ground for any act or deliberate failure to act and that the disclosure played no more than ‘a trivial part’ in the application of the detriment. The employer is therefore required to prove on the balance of probabilities that the treatment was ‘in no sense whatever’ on the ground of the whistleblowing disclosure.

WHISTLEBLOWING UPDATE

Our roundup for the Employment Lawyers Association on 5 June 2010.

INTERIM RELIEF

Interim relief applications allow employees to bring a claim for re-intsatement or re-engagement within 7 days of the date of dismissal. The Employment Appeal Tribunal in the case of Raja v Secretary of State for Justice confirmed that the meaning of 'likely' in the test for interim relief is a 'pretty good chance of success'.

PIDA PROTECTION EXTENDS POST-EMPLOYMENT

In the case of BP v Elstone, the Employment Appeal Tribunal extended PIDA protection to a whistleblower who had raised a concern in his previous employment and had been victimised by his current employer when they discovered this. Interestingly, the judgment points out that had the whistleblower been victimised at point of recruitment, he would not have been protected .

REALITY CHECK - NO NEED FOR LEGAL PERFECTION

The Court of Appeal has ruled in Babula v Waltham Forest College that it is not necessary for a whistleblower to get his law right before PIDA protection kicks in. The Court overturned the 2004 decision of the EAT in Kraus v Penna, pointing out that the evidential test in section 43B is that the whistleblower “reasonably believes the information tends to show [the malpractice].”

IS PIDA LIKE DISCRIMINATION LAW?

The Court of Appeal in Kuzel v Roche held even though the Tribunal did not accept R’s reason for dismissing K, this did not mean that it must accept the reason put forward by K. Having heard the evidence on both sides, it was open for the Tribunal to decide that the true reason for dismissal was not that advanced by either side. The Court of Appeal rejected the contention that the legal burden was on the claimant to prove that the protected disclosure was the reason for the dismissal; they merely had to advance evidence of it. However as R had successfully contested the reason advanced by K but failed to establish a potentially fair reason, K’s dismissal was unfair, though not on the grounds of having made a protected disclosure. The Court agreed with the EAT that to transplant the operation of the burden of proof from discrimination law would complicate rather than clarify the issue, as discrimination law and unfair dismissal law were different causes of action.

While there are some significant differences between PIDA and discrimination law, the Court of Appeal has previously ruled that (see, for example, Woodward and Melia below and Ezsias v North Glamorgan NHS Trust) that PIDA should where possible be approached by the courts like a discrimination case. This encourages the parties and the courts to see PIDA cases not just as a private dispute between the parties but to consider whether the effect of the decision will make it more or less likely that whistleblowing concerns are raised and addressed constructively.

WHISTLEBLOWER’S MISCONDUCT

In December 2006, the Court of Appeal in Bolton School v Evans confirmed a decision of the EAT that PIDA protection applies only to the whistleblowing and not to the whistleblower’s wrongful acts (in this case computer hacking) to prove the concern was valid. The Court supported the approach of the EAT that PIDA protects whistleblowers who reasonably believe the information tends to show something is wrong, not those who engage in unlawful activity and investigate the matter to establish that it is in fact wrong. In practical terms the effect of the decision is that an internal whistleblower should consider an external disclosure either to a regulator (under S43F) or wider (under s 43G) as alternatives to pursuing or proving the matter internally.

MEDIA LEAK

In Collins v National Trust (ET Case 2507255/05) an employment tribunal ruled that the leak to a local newspaper of a confidential report about dangers on a public beach was protected.

STATISTICS TO 2007 FOR PIDA APPLICATIONS AND THEIR OUTCOMES

This table includes the annual statistics since the introduction of the Act.

OMBUDSMAN CASTIGATES DTI OVER WHISTLEBLOWING SECRECY

A report from the Parliamentary Ombudsman has strongly criticised the Department of Trade and Industry (DTI, now renamed the Department for Business, Enterprise and Regulatory Reform) for the “inherently misleading” way it introduced new rules that prevent the public learning about whistleblowing concerns raised under PIDA. As a result the DTI paid this charity £130,000 for misleading us and wasting our time.

POST-EMPLOYMENT VICTIMISATION

In a landmark decision, the Court of Appeal has ruled in Woodward v Abbey Nationalthat PIDA protection applies to post-employment victimisation. This is intended to discourage employers from trying to make things difficult for a whistleblower after he has left by denying him a reference. The decision restates that PIDA should be viewed as anti-discrimination legislation.

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COMPENSATION FOR DETRIMENT

In the Court of Appeal of Melia v Magna Kansei, Adrian Melia represented himself and won his case that he should be compensated for the distress suffered and legal costs incurred until the date he resigned following his victimisation for whistleblowing.

DO IT YOURSELF

In the EAT, Julian Dobson successfully defended his wife's PIDA victory against the novel argument that even though she had been acting in good faith when she reported child abuse, she should lose as the employer had not believed her good faith at the time it dismissed her. For the EAT decision, click here.

“GOOD FAITH” IN PIDA

There have been decisions from the Court of Appeal and EAT on the meaning of ‘good faith’ in the Public Interest Disclosure Act.

WHISTLEBLOWING AND THE FREEDOM TO REPORT

The High Court has ruled that a BBC broadcast, prompted by a whistleblower’s disclosure, that criticised senior managers at an NHS Trust for manipulating waiting lists was true in substance and not libellous - Henry v BBC. For an article in Guardian Media on the case click here.

DECISIONS OF THE EAT

The Employment Appeal Tribunals publishes its key decisions. By following this link and selecting ‘Public Interest Disclosure’ in the topic section you will find copies of decisions of the EAT on PIDA.

Culled from an extensive review of 1200 Public Interest Disclosure Act claims, this 2003 paper contains summaries of over 70 notable legal decisions, 7 of which are from the appeal courts.

SHIPMAN INQUIRY PROPOSALS

Following from its examination of whistleblowing in the case of Dr Harold Shipman and generally within the NHS, the Shipman Inquiry has suggested changes to PIDA. In particular, the Inquiry made suggestions on the meaning of “good faith”, the requirement to demonstrate “reasonable belief” and the nature of making a disclosure in a small workplace (such as a GP practice). The Shipman Inquiry's suggestions can be viewed by clicking here. PCaW's submissions to the Inquiry and our press release on its recommendations can be viewed here.

HMG - WHISTLEBLOWING IS ABOUT CULTURE

The Minister for the Cabinet Office confirmed in 2005 that the Government views whistleblowing and PIDA as about organisational culture and good governance rather than employment law.

INTERESTING HISTORIC ET DECISIONS

As to early employment tribunal decisions, see the 2000 case of Fernandes vs Netcom Consultants and our article Whistleblowing: The early view from the tribunals.

WHISTLEBLOWING CASE SUMMARIES: NOTABLE DECISIONS UNDER PIDA