The Public Interest Disclosure Act 1998 (PIDA) – often referred to as the ‘Whistleblowing’ Act – was introduced in the wake of various workplace scandals and disasters after official enquiries revealed that workers had known of the situation but were too scared to come forward to raise the alarm.
PIDA provides a legal remedy for people who suffer a detriment as a result of disclosing information relating to crimes, breaches of a legal obligation, miscarriages of justice, dangers to health and safety or the environment and to the concealing of evidence relating to any of these. In particular, PIDA makes it automatically unfair dismissal to dismiss an employee for making a protected disclosure to someone to whom they are entitled to make it or to penalise them for doing so. There is no statutory cap on the compensation payable for claims derived from whistleblowing.
The Enterprise and Regulatory Reform Act 2013 made certain changes to the whistleblowing laws. Firstly, a legal loophole which meant that the definition of public interest included someone blowing the whistle about the terms of their own employment contract was closed so that a disclosure will not be protected unless the employee making it reasonably believes that doing so is in the public interest. Secondly, the requirement that a worker who makes a protected disclosure must be acting in good faith in order to be protected against dismissal for having made it was removed. In its place, an Employment Tribunal (ET) has the power to reduce the compensation award by 25 per cent if it finds that a disclosure was not made in good faith. Lastly, the law has been strengthened so that individuals who suffer a detriment at the hands of a co-worker for making a protected disclosure can bring ET claims against both their co-worker and their employer in respect of that detriment. Employers will not be held liable for the actions of the co-worker if they can show that all reasonable steps were taken to protect the worker from the co-worker’s action.
Where someone decides to blow the whistle to a prescribed person rather than their employer, it is important that they choose the correct person or body for that particular issue. For example, someone making a protected disclosure on broadcasting malpractice should contact the Office of Communications. Someone wishing to blow the whistle on the improper administration of a charity should contact the Charity Commission for England and Wales or the Office of the Scottish Charity Regulator in Scotland.
The Department for Business, Innovation and Skills has recently updated the list of prescribed persons and bodies to whom a disclosure can be made. Each entry contains a brief description of the matters that can be reported to that prescribed person or body.
In addition, a person may choose to blow the whistle to their legal adviser, in the course of obtaining legal advice, or to a member of the House of Commons about any matter specified in the Public Interest Disclosure (Prescribed Persons) Order 2014. Contact details for Members of Parliament can be found on the UK Parliament website.
The updated list of prescribed persons and bodies can be found on the GOV.UK website.
On 1 January 2016, the Small Business, Enterprise and Employment Act 2015 (Commencement No 3) Regulations 2015 brought into force Section 148 of the Act. This gives the Secretary of State the power to make regulations requiring a prescribed person or body to produce an annual report on all public interest disclosures made to them. The regulations must set out what information is to be included in the report, but its contents must not enable the whistleblower or the employer or other subject of the disclosure to be identified.
The measure has been introduced with the aim of ensuring that disclosures to all prescribed bodies are handled to a consistent standard and in order to provide greater reassurance to the whistleblower that action is being taken with regard to their disclosure. It is hoped that the changes will give those wishing to make a protected disclosure greater confidence to do so whilst at the same time driving behavioural change within organisations so that disclosures are viewed as an effective way of identifying and overcoming poor practice.