Transport Salaried Staffs' Association

Public Disclosure Act 1998

This brief explains whistleblowers’ rights under the Public Disclosure Act 1998, who they apply to and in what circumstances.

The Public Disclosure Act 1998 came into effect in July 1999. In the past, employees were hesitant to raise concerns about wrongdoing because they feared that they would not be listened to or that they would be putting their jobs at risk.

This Act allows employees to voice authentic concerns about misconduct and malpractice without receiving penalties such as dismissal, victimisation, or denial of promotion, facilities or training opportunities. Furthermore, unions have taken the role of watchdogs to assure that this statutory protection is upheld.

Qualifications

Almost all workers in the public, private, and voluntary sectors are protected under this Act. Homeworkers, certain agency workers, National Health Service professionals, contractors and certain categories of trainees are also protected. Certain types of disclosures qualify for protection if they are made in good faith, if it is reasonable to believe when looking at the circumstances at the time of disclosure that misconduct was occurring, and if the disclosure tends to show that the misconduct is happening now, happened in the past or will likely happen in the future.

The following are the qualifying disclosures protected by the Act:

• A criminal offence
• Failure to comply with legal obligations
• A miscarriage of justice
• Danger to health or safety of any individual
• Any damage to the environment
• An attempt to cover up information that would provide evidence that any of these five practices occurred

Protection under the Public Interest Disclosure Act extends to disclosure concerning a wrongdoing that took place overseas or where the law applying to the misconduct was not that of the United Kingdom. The Act also specifies that any provision, in a contract between a worker and his employer, which would prevent the worker from making disclosures protected by the new provisions, is void.

Although disclosure is protected in a great variety of situations, there are two major exceptions to protection of disclosure. The first exception exists when by disclosing information an individual commits an offence. In this case, the information will not qualify for protection. Secondly, if a legal adviser discloses information protected by legal professional privilege that was disclosed to him or her by an individual obtaining legal advice, the legal advisor will not be protected under the provisions of the Act.

Who to report disclosures to

There are a number of sources where a worker may safely report an incident of wrongdoing. A qualifying disclosure will be protected when it is made, in good faith, to either

1. the worker’s employer, directly to the employer or by using procedures authorised by the employer for the purpose of disclosure, or
2. to the person whom the worker believes to be responsible for the wrongdoing. Another option for a worker concerned about wrongdoing is that he or she may report it to a person or body that has been prescribed by the Secretary of State to hear disclosures about the matter concerned.

A worker will be protected when disclosing information to this appointed body/person if the disclosure is made in good faith, the worker reasonably believes that the information he or she is providing is true, and the matter falls within the subject matter which the person or body has been appointed to hear. When an individual reports incidents to these appointed authorities the prescribed persons can offer advice and guidance to workers about the situation. For the web site address that contains a list of prescribed persons, the matters for which they are prescribed, and contact information, please see below.

Disclosure will remain protected when individuals disclose information to a legal adviser in order to obtain legal advice. When an individual is a member of a government-appointed organisation, he or she may report an incident in good faith to a Government Minister and the disclosure will be protected.

Disclosures: serious, general, and health & safety

An individual who makes a disclosure about a serious wrongdoing will be protected from penalties if the disclosure is made in good faith, the wrongdoing is exceptionally serious (as a matter of fact, not simply the worker reasonably believing the wrongdoing is serious), and the disclosure is not for personal gain. In serious cases, the individual discloses the information to a wider base, for example the media, MPs or the police. In order to be protected the matter that has been disclosed to this wider base must involve one of the following scenarios:

• The matter was not raised internally or with a prescribed regulator, because the worker reasonably feared that he or she would be victimised
• The matter was not raised internally because the worker reasonably believed that there would be a cover-up and there is no prescribed person outside the company to whom the worker could speak
• The matter was raised internally or with a prescribed person, but was not dealt with properly

When an individual wishes to make a less serious allegation, the disclosure will be protected by the act if the disclosure is in good faith, the individual believes the information is substantially true, and he or she is not acting for personal gain. Furthermore, one of the following must be true in order to gain protection:

• The worker reasonably believes that he or she would be subjected to a detriment by his or her employer if disclosure were to be made to the employer or the prescribed person
• The worker reasonably believes that disclosure to the employer would result in the destruction or concealment of information about the wrongdoing
• The worker had previously disclosed the same information to his employer or to a prescribed person

Furthermore, it must also be reasonable for a worker to make the disclosure. Such factors as:

• the identity of the person to whom the disclosure was made (e.g. the media)
• the seriousness of the wrongdoing
• whether the wrongdoing is continuing or is likely to occur again
• whether the disclosure breaches the employer’s duty of confidentiality to others
• what action has or might be expected to have been taken if a disclosure was made previously to the employer and
• whether the worker complied with any internal procedures approved by the employer if a disclosure was made previously to the employer

will be taken into consideration by an employment tribunal when deciding whether the worker acted reasonably in disclosing information.

The Employment Rights Act of 1996 gave protection to employees who raised concerns about health and safety matters. The 1998 Act includes a complementary provision that provides protection to any worker who discloses information about a health or safety danger. The worker is advised to tell a health and safety representative when they believe that a wrongdoing is occurring.

Whistleblowing policies at work

The Public Disclosure Act 1998 does not require employers to adopt whistleblowing policies. However, it is in each company’s best interest to do so because if there is no representative for an employee to voice his or her concerns to inside the company, the employee, protected under the Public Disclosure Act, will most likely go public with the problem he or she sees. Furthermore, enacting a policy helps to detect problems and helps to stop them before they cause serious harm to the company.

A whistleblowing policy should be written with the following recommendations in mind:

• The policy should say who and what it applies to
• Make it clear that the employer is committed to tackling malpractice and wrongdoing
• Make it clear to the staff that malpractice and wrongdoing is a serious matter which will not be dealt with lightly
• Explain the Act protects workers who report wrongdoing within the work place
• Ensure confidentiality for the whistleblower who requests it
• Establish timelimits to ensure that a concern will be dealt with promptly
• Provide assurance that feedback will be provided about the progress and outcome of the investigation
• Provide that concerns will be properly recorded
• Provide information about the relationship between the whistleblowing policy and the employer’s other procedures
• Allow concerns to be raised independently from line management
• Recognise employees may lawfully raise concerns externally
• Inform employees that they can seek help from their trade union representative if they have a concern to raise
• Provide information about prescribed individuals outside the company who can handle employees concerns and offer advice

Employment tribunals and remedies

Employees may claim under the provisions that they have been subjected to detriment by their employers for making a protected disclosure. An employee can claim unfair dismissal. A ’worker’ who is not an employee but who is under contract and has that contract terminated because he or she made a protected disclosure claim may claim that he or she has been subjected to detriment.

For an employee who wishes to bring a case to a tribunal, the complaint should be issued within three months of the dismissal or detriment. For unfair dismissal claims, interim relief is available if the claim is made within seven days of the date of termination of employment. When a tribunal finds that unfair dismissal has occurred, the court may order re-instatement, re-employment, or payment of compensation. In cases when a worker claims that he or she has been subjected to detriment, payment of compensation may be ordered.

One year following the enactment of the Public Interest Disclosure Act, approximately 200 people have lodged cases with employment tribunals. One year after the enactment of the Public Disclosure act, only two cases had been brought to court on claims of unfair dismissal. However, a highly publicised case in which a Mr. Antonio Fernandes received £293,000 as compensation for being fired after he reported his managing director for claiming unauthorised expenses, will likely dramatically increase the number of cases that will be reported. This is not to say that the number of whistleblowers is small. Since the time that the Act took action, "More that 100 calls are received by the Department of Trade and industry each month accusing rogue directors and undischarged bankrupts of breaking the law by continuing to run companies". The number of calls will grow in the future and it is likely that the legislation will experience greater usage within the next few years.

The act and TSSA members

TSSA reps should approach their employer and ask them how they intend to comply with this legislation. TSSA reps should suggest that their employer consults staff representatives to devise a company policy that adheres to the guidelines outlined in this brief.

Further information

To see a list of prescribed persons, the matters for which they are prescribed and contact information please visit the following web page: www.direct.gov.uk

The briefs in this section provide guidance and some basic details of employment rights. They do not attempt to be comprehensive, and should not be taken as an authoritative statement of the law.