Public Interest Disclosure Act 1998
Encyclopedia
The Public Interest Disclosure Act 1998 (c.23) is an Act
of the Parliament of the United Kingdom
that protects whistleblowers
from detrimental treatment by their employer. Influenced by various financial scandals and accidents, along with the report of the Committee on Standards in Public Life
, the bill was introduced to Parliament by Richard Shepherd
and given government support, on the condition that it become an amendment to the Employment Rights Act 1996
. After receiving the Royal Assent
on 2 July 1998, the Act came into force on 2 July 1999. It protects employees who make disclosures of certain types of information, including evidence of illegal activity or damage to the environment, from retribution from their employers, such as dismissal or being passed over for promotion. In cases where such retribution takes place the employee may bring a case before an employment tribunal, which can award compensation.
As a result of the Act, many more employers have instituted internal whistleblowing procedures, although only 38 percent of individuals surveyed worked for a company with such procedures in place. The Act has been criticised for failing to force employers to institute such a policy, containing no provisions preventing the "blacklisting" of employees who make such disclosures, and failing to protect the employee from libel proceedings should his allegation turn out to be false.
thanks to a public interest
defence, this did not prevent subtle or open victimisation in the workplace, including disciplinary action, dismissal, failure to gain promotion or a pay rise. During the early to mid 1990s, interest in whistleblower protection grew, partially due to a series of financial scandals and health and safety accidents, which investigations into showed could have been prevented if employees had been permitted to voice their concerns, and partially due to the work of the Committee on Standards in Public Life
. In 1995 and 1996, two private member's bills
dealing with whistleblowers were introduced to Parliament, by Tony Wright and Don Touhig
respectively, but both efforts fell through. When Richard Shepherd
proposed a similar bill, however, he got government support for it on the condition that it be an amendment to the Employment Rights Act 1996
rather than a new area of law in its own right. Public Concern at Work, a UK-based whistleblowers charity, was involved in the drafting and consultation stages of the bill.
The Public Interest Disclosure Bill was introduced to the House of Commons by Shepherd in 1997, and given its second reading on 12 December before being sent to a committee. After being passed by the Commons it moved to the House of Lords
on 27 April 1998, and was passed on 29 June, receiving the Royal Assent
on 2 July and becoming the Public Interest Disclosure Act 1998. Originally scheduled to come into force on 1 January 1999, the Act instead became applicable law on 2 July.
, individuals appointed by the Secretary of State
for this purpose, or, in limited circumstances, "any other person", is protected. In addition, the disclosure must be one which the whistleblower "reasonably believes" shows a criminal offence, a failure to comply with legal obligations, a miscarriage of justice, danger to the health and safety of employees, damage to the environment, or the hiding of information which would show any of the above actions. These disclosures do not have to be of confidential information, and this section does not abolish the public interest defence; in addition, it can be the disclosure of information about actions which have already occurred, are occurring, or could occur in the future. In Miklaszewicz v Stolt Offshore Ltd, the Employment Appeal Tribunal
confirmed that the disclosure does not have to have been made after the Act came into force; it is sufficient for the dismissal or other persecution by the employer to have happened after that time.
The list of "prescribed persons" is found in the Public Interest Disclosure (Prescribed Persons) Order 1999, and includes only official bodies; the Health and Safety Executive
, the Data Protection Registrar, the Certification Officer, the Environment Agency
and the Secretary of State for Trade and Industry
. An employee will be protected if he "makes a disclosure in good faith" to one of these people, and "reasonably believes that the relevant failure...is a matter in respect of which the person is prescribed and the information is substantially true". Other prescribed persons include the Scottish Environment Protection Agency
, in relation to "acts or omissions which have an actual or potential effect on the environment...including those relating to pollution".
If an employee does make such a disclosure, Section 2 inserts a new Section 47B, providing that the employee shall suffer no detriment in their employment as a result. This includes both negative actions and the absence of action, and as such covers discipline, dismissal, or failing to gain a pay rise or access to facilities which would otherwise have been provided. If an employee does suffer a detriment, he is permitted to make a complaint before an employment tribunal under Section 3. In front of an employment tribunal, the law is amended in Sections 4 and 5 to provide compensation, and to reverse the burden of proof; if an employee has been dismissed for making a protected disclosure, this dismissal is automatically considered unfair. Similarly, under Section 6, an employee cannot be given priority when discussing redundancies
simply because he made such a disclosure. These sections take into account Section 7, which notes that there is no requirement of age or length of employment before they come into effect.
Under Section 8, the Secretary of State could pass a statutory instrument
setting out the rules and limits surrounding compensation for the employee's dismissal after making a protected disclosure; until this is done, Section 9 provided interim remedies, which were the same as in other cases of unfair dismissal. The Secretary of State did pass such an instrument, the Public Interest Disclosure (Compensation) Regulations 1999, but Section 8 has now been repealed under Section 44 of the Employment Relations Act 1999. Under Section 10, the Act applies to crown servants
, excepting under Section 11, those who are employees of MI5
, MI6 or GCHQ. The Act does exclude, in Sections 12 and 13, serving police officers and those employed outside the United Kingdom.
David Lewis, writing in the Industrial Law Journal, highlights what he perceives as weaknesses in the legislation. Firstly, it does not force employers to make a policy relating to disclosures. Secondly, it does not prevent employers from "blacklisting" and refusing to hire those who are known within the industry to have made disclosures in previous jobs. The complexity of the law was also criticised, as was the fact that, if such a disclosure turns out to be incorrect, the employee may be sued for libel by his employer. Volunteers and self-employed people are not covered, nor are those who, in disclosing the information, commit a criminal offence. At the same time, the law does not make any provision for psychological harm caused by whistleblowing, which research shows is an increasing likelihood.
Acts of Parliament in the United Kingdom
An Act of Parliament in the United Kingdom is a type of legislation called primary legislation. These Acts are passed by the Parliament of the United Kingdom at Westminster, or by the Scottish Parliament at Edinburgh....
of the Parliament of the United Kingdom
Parliament of the United Kingdom
The Parliament of the United Kingdom of Great Britain and Northern Ireland is the supreme legislative body in the United Kingdom, British Crown dependencies and British overseas territories, located in London...
that protects whistleblowers
Whistleblower
A whistleblower is a person who tells the public or someone in authority about alleged dishonest or illegal activities occurring in a government department, a public or private organization, or a company...
from detrimental treatment by their employer. Influenced by various financial scandals and accidents, along with the report of the Committee on Standards in Public Life
Committee on Standards in Public Life
The Committee on Standards in Public Life is an advisory non-departmental public body of the United Kingdom Government.The Committee on Standards in Public Life is constituted as a standing body with its members appointed for up to three years.-History:...
, the bill was introduced to Parliament by Richard Shepherd
Richard Shepherd
Richard Charles Scrimgeour Shepherd is a Conservative politician in the United Kingdom. He is currently a Member of Parliament, having represented the constituency of Aldridge-Brownhills since 1979....
and given government support, on the condition that it become an amendment to the Employment Rights Act 1996
Employment Rights Act 1996
The Employment Rights Act 1996 is a United Kingdom Act of Parliament passed by the Conservative government to codify the existing law on individual rights in UK labour law. Previous statutes, dating from the Contracts of Employment Act 1963, included the Redundancy Payments Act 1965, the...
. After receiving the Royal Assent
Royal Assent
The granting of royal assent refers to the method by which any constitutional monarch formally approves and promulgates an act of his or her nation's parliament, thus making it a law...
on 2 July 1998, the Act came into force on 2 July 1999. It protects employees who make disclosures of certain types of information, including evidence of illegal activity or damage to the environment, from retribution from their employers, such as dismissal or being passed over for promotion. In cases where such retribution takes place the employee may bring a case before an employment tribunal, which can award compensation.
As a result of the Act, many more employers have instituted internal whistleblowing procedures, although only 38 percent of individuals surveyed worked for a company with such procedures in place. The Act has been criticised for failing to force employers to institute such a policy, containing no provisions preventing the "blacklisting" of employees who make such disclosures, and failing to protect the employee from libel proceedings should his allegation turn out to be false.
Background
Prior to the 1998 Act, whistleblowers in the United Kingdom had no protection against being dismissed by their employer. Although they could avoid being sued for breach of confidenceBreach of confidence in English law
Breach of confidence in English law is an equitable doctrine which allows a person to claim a remedy where their confidence has been breached. A duty of confidence arises when confidential information comes to the knowledge of a person in circumstances where it would be unfair if it were disclosed...
thanks to a public interest
Public interest
The public interest refers to the "common well-being" or "general welfare." The public interest is central to policy debates, politics, democracy and the nature of government itself...
defence, this did not prevent subtle or open victimisation in the workplace, including disciplinary action, dismissal, failure to gain promotion or a pay rise. During the early to mid 1990s, interest in whistleblower protection grew, partially due to a series of financial scandals and health and safety accidents, which investigations into showed could have been prevented if employees had been permitted to voice their concerns, and partially due to the work of the Committee on Standards in Public Life
Committee on Standards in Public Life
The Committee on Standards in Public Life is an advisory non-departmental public body of the United Kingdom Government.The Committee on Standards in Public Life is constituted as a standing body with its members appointed for up to three years.-History:...
. In 1995 and 1996, two private member's bills
Private Member's Bill
A member of parliament’s legislative motion, called a private member's bill or a member's bill in some parliaments, is a proposed law introduced by a member of a legislature. In most countries with a parliamentary system, most bills are proposed by the government, not by individual members of the...
dealing with whistleblowers were introduced to Parliament, by Tony Wright and Don Touhig
Don Touhig
James Donnelly Touhig, Baron Touhig, PC, KSS is a British Labour Co-operative politician from Wales. He was the Member of Parliament for Islwyn from 1995 until his retirement in 2010.-Early life:...
respectively, but both efforts fell through. When Richard Shepherd
Richard Shepherd
Richard Charles Scrimgeour Shepherd is a Conservative politician in the United Kingdom. He is currently a Member of Parliament, having represented the constituency of Aldridge-Brownhills since 1979....
proposed a similar bill, however, he got government support for it on the condition that it be an amendment to the Employment Rights Act 1996
Employment Rights Act 1996
The Employment Rights Act 1996 is a United Kingdom Act of Parliament passed by the Conservative government to codify the existing law on individual rights in UK labour law. Previous statutes, dating from the Contracts of Employment Act 1963, included the Redundancy Payments Act 1965, the...
rather than a new area of law in its own right. Public Concern at Work, a UK-based whistleblowers charity, was involved in the drafting and consultation stages of the bill.
The Public Interest Disclosure Bill was introduced to the House of Commons by Shepherd in 1997, and given its second reading on 12 December before being sent to a committee. After being passed by the Commons it moved to the House of Lords
House of Lords
The House of Lords is the upper house of the Parliament of the United Kingdom. Like the House of Commons, it meets in the Palace of Westminster....
on 27 April 1998, and was passed on 29 June, receiving the Royal Assent
Royal Assent
The granting of royal assent refers to the method by which any constitutional monarch formally approves and promulgates an act of his or her nation's parliament, thus making it a law...
on 2 July and becoming the Public Interest Disclosure Act 1998. Originally scheduled to come into force on 1 January 1999, the Act instead became applicable law on 2 July.
Act
Section 1 of the Act inserts sections 43A to L into the Employment Rights Act 1996, titled "Protected Disclosures". It provides that a disclosure which the whistleblower makes to their employer, a "prescribed person", in the course of seeking legal advice, Ministers of the CrownMinister of the Crown
Minister of the Crown is the formal constitutional term used in the Commonwealth realms to describe a minister to the reigning sovereign. The term indicates that the minister serves at His/Her Majesty's pleasure, and advises the monarch, or viceroy, on how to exercise the Crown prerogatives...
, individuals appointed by the Secretary of State
Secretary of State (United Kingdom)
In the United Kingdom, a Secretary of State is a Cabinet Minister in charge of a Government Department ....
for this purpose, or, in limited circumstances, "any other person", is protected. In addition, the disclosure must be one which the whistleblower "reasonably believes" shows a criminal offence, a failure to comply with legal obligations, a miscarriage of justice, danger to the health and safety of employees, damage to the environment, or the hiding of information which would show any of the above actions. These disclosures do not have to be of confidential information, and this section does not abolish the public interest defence; in addition, it can be the disclosure of information about actions which have already occurred, are occurring, or could occur in the future. In Miklaszewicz v Stolt Offshore Ltd, the Employment Appeal Tribunal
Employment Appeal Tribunal
The Employment Appeal Tribunal is a tribunal non-departmental public body in England and Wales and Scotland, and is a superior court of record. Its primary role is to hear appeals from Employment Tribunals in England, Scotland and Wales...
confirmed that the disclosure does not have to have been made after the Act came into force; it is sufficient for the dismissal or other persecution by the employer to have happened after that time.
The list of "prescribed persons" is found in the Public Interest Disclosure (Prescribed Persons) Order 1999, and includes only official bodies; the Health and Safety Executive
Health and Safety Executive
The Health and Safety Executive is a non-departmental public body in the United Kingdom. It is the body responsible for the encouragement, regulation and enforcement of workplace health, safety and welfare, and for research into occupational risks in England and Wales and Scotland...
, the Data Protection Registrar, the Certification Officer, the Environment Agency
Environment Agency
The Environment Agency is a British non-departmental public body of the Department for Environment, Food and Rural Affairs and an Assembly Government Sponsored Body of the Welsh Assembly Government that serves England and Wales.-Purpose:...
and the Secretary of State for Trade and Industry
Secretary of State for Trade and Industry
The Secretary of State for Business, Innovation and Skills is a cabinet position in the United Kingdom government. Its secondary title is the President of the Board of Trade...
. An employee will be protected if he "makes a disclosure in good faith" to one of these people, and "reasonably believes that the relevant failure...is a matter in respect of which the person is prescribed and the information is substantially true". Other prescribed persons include the Scottish Environment Protection Agency
Scottish Environment Protection Agency
The Scottish Environment Protection Agency is Scotland’s environmental regulator. Its main role is to protect and improve Scotland's environment...
, in relation to "acts or omissions which have an actual or potential effect on the environment...including those relating to pollution".
If an employee does make such a disclosure, Section 2 inserts a new Section 47B, providing that the employee shall suffer no detriment in their employment as a result. This includes both negative actions and the absence of action, and as such covers discipline, dismissal, or failing to gain a pay rise or access to facilities which would otherwise have been provided. If an employee does suffer a detriment, he is permitted to make a complaint before an employment tribunal under Section 3. In front of an employment tribunal, the law is amended in Sections 4 and 5 to provide compensation, and to reverse the burden of proof; if an employee has been dismissed for making a protected disclosure, this dismissal is automatically considered unfair. Similarly, under Section 6, an employee cannot be given priority when discussing redundancies
Redundancy
Redundancy may refer to:* Redundancy * Redundancy * Redundancy * Redundancy * Redundancy * Data redundancy* Gene redundancy* Logic redundancy...
simply because he made such a disclosure. These sections take into account Section 7, which notes that there is no requirement of age or length of employment before they come into effect.
Under Section 8, the Secretary of State could pass a statutory instrument
Statutory Instrument
A Statutory Instrument is the principal form in which delegated or secondary legislation is made in Great Britain.Statutory Instruments are governed by the Statutory Instruments Act 1946. They replaced Statutory Rules and Orders, made under the Rules Publication Act 1893, in 1948.Most delegated...
setting out the rules and limits surrounding compensation for the employee's dismissal after making a protected disclosure; until this is done, Section 9 provided interim remedies, which were the same as in other cases of unfair dismissal. The Secretary of State did pass such an instrument, the Public Interest Disclosure (Compensation) Regulations 1999, but Section 8 has now been repealed under Section 44 of the Employment Relations Act 1999. Under Section 10, the Act applies to crown servants
Crown servant
In the United Kingdom, a Crown servant is an officer of HM Government employed under the Crown whose duties of employment are of a public nature and whose salaries are paid out of public funds.-The Official Secrets Act 1989:...
, excepting under Section 11, those who are employees of MI5
MI5
The Security Service, commonly known as MI5 , is the United Kingdom's internal counter-intelligence and security agency and is part of its core intelligence machinery alongside the Secret Intelligence Service focused on foreign threats, Government Communications Headquarters and the Defence...
, MI6 or GCHQ. The Act does exclude, in Sections 12 and 13, serving police officers and those employed outside the United Kingdom.
Assessment and Impact
Terry Corbin, writing in the Criminal Law and Justice Weekly, notes that the result of the Act has been that many more employers have developed internal processes for reporting issues; partially due to their desire to fix problems before they become publicly reports, and partially because if an employee chooses to not use these processes and instead act under the 1998 Act, there is a greater chance the employer can depict his behaviour as "unreasonable". However, a survey done by Public Concern At Work showed that in 2010, only 38 percent of those surveyed worked for companies with whistleblowing policies in place, and only 23 percent knew that legal protection for whistleblowers existed. The number of cases brought by whistleblowers to employment tribunals has increased by over a thousandfold, from 157 in 1999/2000 to 1,761 in 2008/9.David Lewis, writing in the Industrial Law Journal, highlights what he perceives as weaknesses in the legislation. Firstly, it does not force employers to make a policy relating to disclosures. Secondly, it does not prevent employers from "blacklisting" and refusing to hire those who are known within the industry to have made disclosures in previous jobs. The complexity of the law was also criticised, as was the fact that, if such a disclosure turns out to be incorrect, the employee may be sued for libel by his employer. Volunteers and self-employed people are not covered, nor are those who, in disclosing the information, commit a criminal offence. At the same time, the law does not make any provision for psychological harm caused by whistleblowing, which research shows is an increasing likelihood.