The Public Interest Disclosure Act 1998 (PIDA) gives two levels of employment protection. First, it protects workers from being penalised on the ground that they have made a protected disclosure. Second, it renders an employee's dismissal automatically unfair if the reason for the dismissal is that he has made a protected disclosure.
While employees normally need a year's continuous service in order to bring a claim for unfair dismissal, there is no length of service requirement for this type of claim. As such, bringing a claim under PIDA can be an attractive option for those who do not have a sufficient period of qualifying employment to bring a claim of ordinary unfair dismissal. In addition, the usual financial cap on the compensatory award does not apply to such an automatically unfair dismissal, so successful claims can cost the employer dearly.
The first thing to understand is what constitutes a protected disclosure. First, there has to be a qualifying disclosure (QD) -- described as 'any disclosure of information which, in the reasonable belief of the worker making the disclosure, tends to show one or more of the following, that:
- a criminal offence has been committed, is being committed or is likely to be committed;
- a person has failed, is failing or is likely to fail to comply with any legal obligation to which he is subject;
- a miscarriage of justice has occurred, is occurring or is likely to occur;
- the health or safety of any individual has been, is being or is likely to be endangered;
- the environment has been, is being or is likely to be damaged, or
- information tending to show any matter falling within any one of the preceding paragraphs has been, or is likely to be, deliberately concealed'.
The QD must then be 'converted' into a protected disclosure (PD). This happens if it is made to a particular person in accordance with the legislation – for example, if it is made to an employer in good faith.
The EAT has recently heard a case, Cavendish Munro Professional Risks Management Ltd v Gedud, which highlighted that in order to make a PD, it is necessary to disclose information about a situation, and that this requires facts to be conveyed. The EAT said that is not enough to merely make an allegation. The EAT illustrated the distinction helpfully by using hypothetical examples in a hospital scenario. 'The wards have not been cleaned for the past two weeks. Yesterday sharps were left lying around' would be enough to disclose information. By contrast, 'You are not complying with health and safety legislation' is merely an allegation rather than a disclosure of information.
In the manufacturing sector, an example of a QD might be that on the food production line on the night shift, food is being contaminated, with the effect that unsafe foods are being provided to the consumer which presents a health and safety risk.
Even where individuals overcome the hurdles to show that they have made a PD, they must then show that they were penalised or dismissed for having made the PD. The correct legal test in a detriment claim is to show that detriment was on the ground that the worker made a PD. In an unfair dismissal claim, it would be that the reason, or principal reason, for the dismissal was that he or she made a PD.
Where a claimant is successful in a detriment claim, the ET must make a declaration and may award compensation, which can include for injury to feelings. Where an employee is dismissed by reason of having made a PD, the ET can award re-instatement, re-engagement and unlimited compensation, but injury to feelings cannot be awarded.
While employers are not required by law to have a whistleblowing policy, it is a good idea. It reduces the risk of a worker making a PD, or blowing the whistle to a person or body outside of your organisation.
Furthermore, workers may not be protected if they make an external disclosure where you operate a whistleblowing policy that contains an assurance that QDs can be reported without fear of reprisals.
Very importantly, a whistleblowing policy enables employers to remedy wrongdoing before serious damage is caused and to deal with the situation without publicity. Without such a policy, workers may wrongly believe they have no option but to air the matter externally.
Vanessa Webster is principal legal adviser for the EEF: see www.eef.org.uk
