Whistleblowing and the Economic Recession: 10 years of the PIDA

1. Whistleblowing and the Economic Recession: 10 years of the PIDA Catherine Hobby, School of Law, University of East London

2. Protection from Disclosure Act 1998 The Public Interest Disclosure Act (PIDA) 1998, came into force on 2 July 1999 and amended the Employment Rights Act (ERA) 1996 to provide statutory protection to whistleblowers against dismissal and victimisation if they disclose information in respect of their employer’s criminal, dangerous or damaging activities.

3. Protected Disclosure • A ‘protected disclosure’ is a ‘qualifying disclosure’ under s 43B of the ERA 1996. • A qualifying disclosure is a disclosure of information which, in the reasonable belief of the worker making the disclosure, relates to the following – • (a) a criminal offence • (b) failure to comply with a legal obligation • (c) a miscarriage of justice • (d) health or safety • (e) environment, • (f) deliberate concealment of any matter falling within any one of the preceding paragraphs

4. Protection Protection is provided if the Qualifying Disclosure is made good faith to: • To Employer or Other Responsible Person • Legal Adviser • Minister of Crown • Prescribed Person (Regulator) • Non-Prescribed Person in Exceptional Cases

5. Remedies • Not to be subjected to a detriment • Automatic Unfair Dismissal • Unlimited Compensation • In 2008 employment tribunals received 1,700 claims involving PIDA allegations

6. Effective Remedy? “For some, whistleblowing may become a form of professional suicide that can effectively end a career” (Gobert & Punch (2000) ‘Whistleblowers, the Public Interest and the Public Interest Act 1998’) Present economic climate can only intensify workers’ fear regarding future employment

7. 10 Years of PIDA • Development of legal principles through case law • Extension of Prescribed Person List • Some worker awareness of protection • Development of Whistleblowing policies • Increased Recognition of the value of whistleblowing • Change in perception of a whistleblower • Increase in PIDA applications

8. Key Cases • Include: • Street v Derbyshire Unemployed Workers’Centre (good faith) • Woodward v Abbey National (ex-employees) • Virgo Fidelis Senior School v Boyle (compensation for injury to feelings) • Bolton School v Evans (PIDA not cover investigation of concern) • Cumbria CC v Carlisle- Morgan (vicarious liability)

9. Benefits of Whistleblowing • Individual right but collective responsibility • Good Practice • Accountability • Culture of Openess in Workplace • Whistleblowing is “both an instrument of good governance and a manifestation of a more open culture” (Getting the Balance Right, The Committee on Standards in Public Life, January 2005)

10. Change of Culture? 86% of UK employees would feel comfortable blowing the whistle if they suspected fraud or other wrongdoing. Survey by Ernst & Young June 2007 85% of people in work would raise a whistleblowing concern internally. If in doubt about internal route over 50% would raise the matter externally YouGov survey May 2007

11. Limits of PIDA • Exclusion of civil servants from protection of PIDA 1998 under s 43B(3) of ERA 1996 • Requirement of good faith • Need to show reasonable belief • Burden of Proof on Employee • Individual Claim • Not cover hiring • Judicial Interpretation of provisions • Data Protection

12. Whisteblowing Procedures • PIDA does not require the establishment of a whistleblowing procedure to allow employees to raise concerns • The Act indirectly encourages the implemenation of effective whistleblowing policies • A Whistleblowing policy provides a mechanism through which concerns can be addressed

13. Role of Trade Unions • Assist in establishing a culture of openness • Watchdogs • Support for members who raise concerns • Representation of whistleblowers • BUT victimisation of officials who are recipients of concerns

14. Consultation: Employment tribunal claims and the PIDA • Opened 3rd July and closed 2nd October 2009 • How the substance of how allegations of underlying abuse in PIDA cases might be addressed • Issue raised during passage of Employment Act 2008

15. BIS Proposal • Employment Tribunals to send copies of ET1 or extracts from it • Only claims accepted by tribunals and where PIDA is identified as a jurisdiction would be subject to process • Express consent of claimant required • Statutory Instrument to amend Employment Tribunal Rules

16. Reward for Whistleblowing? • Review of Assets Recovery Agency by Home Office considered the American False Claims Act 1986. (FCA) • 2006/07, US Government recovered $42 b under FCA of which $177 m went to whistleblowers • Whistleblowing of value in hi-tech, globalised and out sourcing economy where UK Government awards massive contracts to private sector

17. International • Article 33 UNCAC • Report of Working Party established under Article 29 of 95/46/EC in 2006 • Legislation introduced in countries such as New Zealand and South Africa

18. Future • Whistleblowing claims to rise with increase of City workers seeking redress? • Number of tribunal cases where worker claims victimisation or dismissal for whistleblowing rose 31% in 2008 • Claims have almost tripled in two years • Culture of whistleblowing to change further with possible regulatory reform • Commercial use of whistleblowing

19. Way forward • Promotion of Benefits and Culture of Whistleblowing • Adoption of anti-discrimination model of protection • Recognition of Advisory Role of Trade Union Officials • Mandatory Whistleblowing Procedures • Increased Regulation & Accountability • Reward for Whistleblowing

20. Reform of PIDA • Reform of PIDA – recognition of discrimination based on choices • Removal of the requirement of good faith • Protection against malicious allegations • Reasonable belief to be replaced with reasonable suspicion • Outlaw discrimination in hiring • Right to raise concern

21. Development of the Law • Promotion of Whistleblowing through regulatory legislation • Duty to disclose • Value of Anonymity v Confidential • Collective responsibility in the workplace • Development of the right to disclose based on the human right of freedom of expression