The Public Interest Disclosure Act 1998
There is implied into every contract of employment a duty of fidelity owed by the employee to his employer. That duty includes keeping the employer's affairs confidential. Most contracts of employment reinforce this duty expressly. However, there are situations when an employee comes into possession of information concerning wrongdoing by his employer, which he considers should be reported. Until now, an employee 'spilling the beans' on his employer risked summary dismissal for breach of confidence. The Public Interest Disclosure Act 1998 ("the Act"), which received Royal Assent in July, aims to change that.
What does the Act do and when does it apply?
Although the Act is not yet in force - that is expected sometime towards the end of this year - it has already acquired a nickname, the "Whistleblowers Act" and on its coming into force it will apply to virtually all workers in the public and private sectors.
The Act amends the existing Employment Rights Act 1996 by inserting provisions protecting workers who make certain disclosures in relation to the business of their employers. It forms part of the Government's series of measures aimed at strengthening the individual's employment rights, which includes the minimum wage legislation, fairness at work proposals and enactment of the Working Time Regulations. The new Act seeks to encourage resolution of workplace issues and disputes by set procedures, while also protecting those who raise concerns about certain alleged malpractices at work, characterised as 'qualifying disclosures', in the public interest. Workers are already protected from victimisation which results from raising concerns about health and safety and may be awarded compensation by Employment Tribunals.
Under the Act, those who "blow the whistle" on other illegal or unsafe workplace practices (provided the disclosure fulfils the requirements of the Act) should now also have less fear of victimisation and discrimination at their place of work as a result of making those disclosures. Workers who suffer detrimental treatment for making such a disclosure can complain to an Employment Tribunal and may receive compensation. Dismissals as a consequence of making a protected disclosure are automatically unfair.
The Act extends to all 'workers', which has a wider scope than 'employees' and includes those on work experience or fulfilling training contracts. It also covers employees in the public sector, including NHS practitioners, dentists, opticians and pharmacists. However, it does not include those in the police force, Security Service, the Secret Intelligence Service or GCHQ, ("the excluded employees"), nor those who ordinarily work outside Great Britain. The genuinely self-employed are not included, although those who work under agency contracts or who are freelancers appear to fall within the Act's ambit.
Which disclosures are protected?
The Act applies where a worker has made a "qualifying disclosure" in accordance with procedures laid down in the Act. Qualifying disclosures are those which tend to show one or more of the following:
- that a criminal offence has been, is being or is likely to be committed
- that a person has failed, is failing or is likely to fail to comply with a legal obligation
- that a miscarriage of justice has occurred, is occurring or is likely to occur
- that the health or safety of any individual has been, is being or is likely to be endangered
- that the environment has been, is being or is likely to be damaged
- that information concerning any of the activities above has been, is being or is likely to be deliberately concealed.
Criminal offences
This may be the reporting by one worker of the criminal behaviour of another, or the disclosure of criminal activity carried out by the employer itself, such as anti-competitive practices or breaches of insider dealing rules, to the appropriate official body or police.
Compliance with Legal Obligations
This is a deceptively simple description; the Act is not clear as to how far (if at all) this applies to contractual obligations as well as obligations imposed by statute.
Miscarriages of justice
This may relate to a wide variety of acts by fellow workers or the employer itself.
Health and Safety
There is a wealth of health and safety legislation governing the running of businesses. Disclosures concerning, for example, the failure to wear protective clothing where required or unhygienic food preparation areas would be protected under this category.