Providing an Alternative to Silence:
Towards Greater Protection and Support for
Whistleblowers in the EU
COUNTRY REPORT: UNITED KINGDOM
This report belongs to a series of 27 national reports that assess the adequacy of whistleblower protection
laws of all member states of the European Union.
Whistleblowing in Europe: Legal Protection for
Whistleblowers in the EU, published by Transparency International in November 2013, compiles the
findings from these national reports. It can be accessed at
www.transparency.org. All national reports are available upon reques
t at xx@xxxxxxxxxxxx.xxx.
Responsibility for all information contained in the report lies with the author. Views expressed in the report
are the author’s own, and may not necessarily reflect the views of the organisation for which they work.
Transparency International cannot accept responsibility for any use that may be made of the information
contained therein.
The project has been funded with support from the European Commission. The sole responsibility lies with
the author and the Commission cannot be held responsible for any use that may be made of the
information contained therein.
With financial support from the Prevention of and Fight against Crime Programme of the European Union.
European Commission – Directorate-General Home Affairs
Public Concern at Work: UK submission to Transparency
International whistleblower protection research project.
EXECUTIVE SUMMARY
The UK’s
Public Interest Disclosure Act, 1998 offers strong and comprehensive protection for
workplace whistleblowing. It is a vital tool in the fight against corruption as it covers a wide range of
wrongdoing – as explained below – but suffers from a lack of promotion and support by the UK
government.
Rather than see the legislation as key in the fight against corruption the UK government views the
legislation as additional red tape for UK businesses. It is for this reason that there is currently a
move to amend PIDA creating an additional barrier for those wishing to seek protection from the
legislation. It is because of this attitude to the legislation that the real value of the Act has yet to be
realised, and we conclude that PIDA requires a thorough review and public consultation. This paper
explains how the legislation works in practice as well as charting the history behind the key
promoters of the UK legislation, the charity, Public Concern at Work (PCaW).
Overview
Whistleblowing protection in the UK is concentrated in a single piece of employment legislation - the
Public Interest Disclosure Act 1998 (PIDA). The case law shows that it will protect the reasonable and
honest whistleblower who has raised an issue of genuine public interest. It has also influenced the
development of laws in other jurisdictions and the 2009 Report of the Parliamentary Assembly of the
Council of Europe states: ‘The UK indeed appears to be the model in this field of legislation.’
However, like any other law, PIDA is in need of review to make sure that it is in keeping with the
working environment. Experience has identified some weaknesses in the Act and in its
interpretation. Many of the problems that have arisen are due to judicial interpretation and may
have arisen as a result of there not being a specialist tribunal for whistleblowing claims and/ or the
failure of Government to champion whistleblowing protection.
THE LAW
Background
A series of public inquiries into disasters (for example, the Clapham rail disaster, the Piper Alpha
offshore oil rig explosion and the collapse of the BCCI banking group) found a pattern emerging that
workers had known about the risk or wrongdoing that had contributed to the disaster and were
either too scared to speak up about it or - worse still - they had spoken up and they were ignored.
The Zeebrugge ferry sinking (where 189 lives were lost) was notable as staff had raised concerns on
five occasions previously but were ignored.
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The lack of incentive for staff to raise concerns was recognised by a small civil society organisation,
Public Concern at Work (PCaW), set up in 1993. PCaW campaigned for the protection for
whistleblowers, identifying that workers need to have protection for raising concerns with their
employers, regulators and also more widely in order for the public interest and society to be
protected, and disasters prevented1.
The law for which PCaW campaigned has its roots in the law of confidence. In English common law
there was a long-standing principle that there could be ‘no confidence in iniquity’ which means that
employers who were engaged in wrongdoing could not hide behind confidentiality clauses and
prevent workers from speaking up about wrongdoing or malpractice. Enshrining this principle in
employment law was seen as an important step in the protection for whistleblowers: first of all it
had a declaratory effect, so employers realise that it is in their interests to deal with whistleblowers
and their concerns effectively; and secondly it provided reassurance to workers that they should not
be victimised or dismissed for raising a concern about wrongdoing or malpractice - and if they are,
then they will be compensated.
PCaW campaigned for a new law, and after a process of debate and consultation that lasted 4 years
they devised a draft law and persuaded an MP to put it forward - as the Public Interest Disclosure
Bill. After an initial failed attempt to pass the bill, it was proposed as a Private Member’s Bill by a
Conservative MP and supported by the then Labour Government. Unusually PIDA enjoyed cross-
party, business and trade union support. It recognises that workers are in a unique position as they
are often the first to know about wrongdoing or malpractice and vulnerable in that they can be
deprived of their livelihood if they try to bring suspected wrongdoing or malpractice to their
employer’s attention or that of the appropriate authorities.
Content
PIDA proceeds mainly by amendment of the Employment Rights Act 1996. Its main provisions are
discussed below.
It covers all workers across all sectors - private, public and voluntary. It attracts the ordinary
meaning of ‘worker’ under the Employment Rights Act (section 230 (3)) and extends that (in section
43 K). Its broad application includes UK workers based overseas, although it does not cover the
genuinely self-employed or volunteers. Those working in the armed forces or intelligence services
are not protected by the Act. (This absolute exclusion means that a worker in one of these
organisations will not be protected from victimisation even where he raises a concern internally that
a manager accepted a bribe to award a cleaning contract).
It covers disclosures about a wide range of acts that might constitute wrongdoing, including dangers
to health and safety or the environment, criminal offences, miscarriages of justice, and a breach of a
legal obligation, or attempts to conceal any of these matters (section 43B).
Where the disclosure of the information is itself a crime (e.g. if it is held to breach the Official Secrets
Act), it does not qualify for protection (section 43B (3)). It should be noted that raising such a
concern formally within Government or with the Civil Service Commissioners would not constitute a
breach of (or disclosure under) the Official Secrets Act and so would qualify for protection in any
event. Workers (apart from those working in the armed forces or intelligence services who are not
protected by the Act) will only lose the protection of PIDA if they have been convicted of the offence
of breaching the Official Secrets Act or an Employment Tribunal is satisfied, to a high standard of
proof approaching the criminal standard, that the offence was committed. It should be noted that
1 See below Annex C for more on the history of PCaW
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the current provisions of the Official Secrets Act (from 1989) cover only a limited range of secret
material.
PIDA establishes a tiered disclosure regime, which gives virtually automatic protection to those who
raise a concern internally with their employer (section 43C), as individuals need only show that they
have a reasonable belief tending to showing one of the categories of wrongdoing set out under the
Act (‘a reasonable suspicion of wrongdoing’). They also need to comply with the broad requirement,
which applies generally to disclosures under PIDA (other than those to legal advisers- section 43D-
and designed to enable whistleblowers to seek legal advice) that concerns should be raised in good
faith.
Protection is also readily available for disclosures to regulators that are prescribed under PIDA2 (such
as the Financial Services Authority, the Health and Safety Executive or the Care Quality Commission).
Individuals need to show that they have a reasonable belief and that their concern is substantially
true in order to gain protection (as well as showing that they are acting in good faith) (section 43F).
In certain circumstances, wider disclosures (for example to an MP or the media) may also be
protected (section 43G). The test for wider disclosures performs an important balancing act between
the public interest and the need for confidentiality in certain circumstances. For a disclosure to be
protected individuals must show that they have a reasonable belief that their concern is
substantially true, to be acting in good faith, that they are not raising a concern for personal gain,
that they have a valid cause to go wider and that their actions (in making the disclosure more
widely) are reasonable in all the circumstances.
Where concerns are exceptionally serious (section 43H) individuals have a lower hurdle than that of
section 43G (the ‘wider disclosure’). PIDA will protect those who go straight to the media if
appropriate, as was confirmed in
Collins v National Trust (2005). In this case, the Employment
Tribunal ruled that, in exceptionally serious circumstances, a disclosure to a local newspaper of a
confidential report about dangers on a public beach was protected. However under 43H there is, as
in 43G, the provision that the whistleblower will not be protected if the purpose of the disclosure
was personal gain. This is aimed primarily at cheque book journalism. It covers not only payments of
money, but benefits in kind. It would also catch a situation where the benefit did not go directly to
the worker but to a member of his family, provided that its purpose was personal gain. However,
this provision does not cover any reward payable by or under any enactment (section 43L(2)), such
as a payment made by Customs and Excise.
PIDA makes it clear that any attempt to gag a whistleblower from raising a genuine concern about
wrongdoing – which may be included in an employment contract or compromise agreement – is void
in law (section 43J).
Caselaw has established that an individual does not have to be right about the substance of his
concern, provided he is reasonable (
Babula v Waltham Forest College (2006)). However it also
makes it clear that an individual should be careful to avoid acting like a private detective and step
over the line of what is considered to be appropriate conduct in attempting to prove he is right
(
Bolton v Evans (2006)).
There is no central organisation for the investigation of retaliation. A worker may bring a claim for
unfair dismissal or victimisation within 3 months of their dismissal (section 103A) or the last
detriment they have suffered (section 48) to an employment tribunal. The employment tribunal
2 A full list of the regulators that are prescribed under PIDA can be found h
ere: http://www.pcaw.org.uk/law
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system in the UK is designed so that cases can be taken to them relatively quickly and easily. (If
claims had to be made to civil courts in the UK they would take much longer and be so costly as to
deter claimants). However, due to recent cuts in the tribunal services in the UK, there are concerns
that whistleblowing cases due to their complexity are taking longer. Unlike ordinary unfair dismissal
claims there is no cap in the compensation and the highest single settlement is believed to be £5.2
m. (
Backs & List v Chesterton Plc (2004)). Awards have included payments for aggravated damages
and injury to feelings.
Employment tribunals were initially conceived as a forum where employers and workers could
resolve disputes without the need for lawyers. In recent times, employment law in the UK has
become more complicated and there is an increasing number of lawyers and consultants providing
advice and representation (for a fee). Employment tribunals can be extremely expensive for
individuals to pursue and there is no legal aid provided to individuals. Unlike civil courts there is no
requirement that the losing party pays the costs of the winning party. However, parties may apply
for costs up to a maximum of £10,000 where the other side has behaved unreasonably. The UK
Government will be introducing fees in the employment tribunal service (by April 2013), and it has
announced that PIDA claims will be subject to a £1,200 fee, which could be a barrier to a
whistleblower who has just lost his or her job.
PIDA enables whistleblowers to apply for interim relief (section 128) allowing the claimant to ask for
reinstatement of their job.
In victimisation or detriment claims (section 47B) under PIDA, the Court of Appeal ruled that the
burden of proof will be if the disclosure by the employee materially influences (in the sense of being
more than a trivial influence) the employer's treatment of the whistleblower (
NHS Manchester v
Fecitt & Others). This decision changed the burden of proof in such claims, which used to be that
the employer had to show that its treatment of the worker was "in no sense whatsoever", due to the
whistleblowing. For unfair dismissal claims under PIDA, the dismissal is automatically unfair and the
burden of proof is on the employer to show that they have not dismissed the individual for
whistleblowing.
ISSUES FOR FURTHER CONSIDERATION
The Public Interest
There has been considerable debate over whether there should be a ‘public interest’ test in PIDA.
The issue first arose in the case of Parkins v Sodhexo in 2001 in which the Employment Tribunal
stated during an interim application that in PIDA reference to a breach of a legal obligation was to be
interpreted widely. The case included a complaint by an individual of a breach of his employment
contract. While this means that the scope of the Act is wider than was envisaged during the passage
of the legislation in Parliament, its application can support individuals with limited employment
rights. In one case two individuals were protected under PIDA after they were victimised for raising a
grievance that the company had lured them from good jobs promising wages at a level that was then
reduced once they were in post (
Grierson v Meta Management Services Limited, 2008).
In May 2012 the UK Government proposed to introduce a public interest test as part of the
Enterprise and Regulatory Reform Bill, whereby a claimant would have to show that they had made
a protected disclosure in the public interest. PCaW opposes this provision as this is unlikely to
resolve the Parkins problem and as drafted will be viewed as a barrier for whistleblowers by creating
confusion as to the definition of the public interest and will discourage early preventative
disclosures.
Good faith
In the early years, decisions under the legislation had assumed that this had the ordinary legal
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meaning of ‘honestly’. The Government stated in one of the largest public inquiries into the heath
service in the UK - the Bristol Royal Infirmary Inquiry - that it had intended ‘good faith’ to mean
‘honestly and not maliciously’. However in
Street v Derbyshire Unemployed Workers Centre (2004)
the Court of Appeal rejected the submission that the phrase meant ‘honestly’. The Court decided
that PIDA protection cannot be lost unless there is a predominant ulterior motive that is unrelated
to the purposes of the Act. Concern that the effect of this decision discourages whistleblowers led
the Shipman Inquiry (into a series of murders by a doctor) to recommend that the good faith test
should be removed altogether from PIDA as this would “avoid the possibility that concerns will not
come to light because an individual might lose protection if [his or her] motives can be impugned.”
As yet this recommendation has not been implemented.
Relationship with discrimination law
While there are significant differences between PIDA and discrimination law, the Court of Appeal has
previously ruled that PIDA cases should, where possible, be approached by the courts like
discrimination cases (for example, in
Melia and Ezias v N. Glamorgan NHS Trust, Court of Appeal,
(2007)). The Court of Appeal ruled in
Virgo v Fidelis (2004) that awards for injury to feelings in PIDA
claims are to be assessed in the same way as for other forms of discrimination.
The Court of Appeal also held that even if a tribunal did not accept an employer’s reason for
dismissing a claimant, it did not need to accept the reason put forward by the claimant (
Kuzel v
Roche, 2008). The Court of Appeal rejected the contention that the legal burden was on the claimant
to prove that the protected disclosure was the reason for the dismissal: they merely had to advance
evidence of it. The Court also held that to transplant the operation of the burden of proof from
discrimination law would complicate rather than clarify the issue, as discrimination law and unfair
dismissal law are different causes of action.
PRACTICE
Whistleblowing arrangements
While PIDA does not impose a specific duty on organisations to implement arrangements for staff to
raise concerns safely and responsibly, in terms of providing protection against unjustified treatment
or retaliation, there are a number of strong policy and legal reasons for public and private bodies in
the UK to do so and some of these are listed below. Whistleblowing arrangements are also
important because no matter what the law says, real protection starts with good practice in the
workplace.
1. Under PIDA, an employment tribunal will look to see if an employer had whistleblowing
arrangements in place that a worker could or should have used when determining whether a
wider disclosure, to the media for instance, was reasonable.
2. The independent Committee on Standards in Public Life strongly recommended in its 2nd, 4th
and 10th reports that all public bodies, including all government departments, local
authorities, Non-Departmental Public Bodies, universities, and National Health Service
organisations should implement arrangements for staff to raise concerns internally and
externally, and to seek independent advice. In its 4th Report, the Committee set out the six
essential elements of all good whistleblowing arrangements (reproduced below) and in its
10th report the Committee emphasised the importance of leadership and said all public
bodies should reiterate their commitment to the effective implementation of PIDA.
3. The UK Corporate Governance Code (C.3.4) states for companies listed on the London Stock
Exchange it is a matter for the Board, and specifically the Audit Committee, to ensure that
arrangements are in place for staff to raise concerns in confidence about possible financial
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and other improprieties, and for such concerns to be proportionately and independently
investigated and followed-up.
4. The Bribery Act 2010 (section 7) creates a new form of corporate liability for failing to
prevent bribery and makes it clear that implementing and promoting internal
whistleblowing arrangements – which include access to advice – is part of a legitimate
defence (Ministry of Justice, Guidance to the section 9, of the Bribery Act, 2011).
The declaratory effect of a law that protects those who blow the whistle in the public interest is
important. However, real protection for workers comes from employers encouraging their staff to
speak up about a concern, reassuring them that it is safe to do so and that there are safe external
routes, responding effectively and proportionately to the concern, and acting swiftly to protect the
reasonable and honest whistleblower from any reprisal.
The Committee on Standards in Public life identified the key elements of good whistleblowing
arrangements3:
provides examples distinguishing whistleblowing from grievances
gives staff the option to raise a whistleblowing concern outside line management
provides access to an independent helpline offering confidential advice
offers staff a right to confidentiality when raising a concern
explains when and how a concern maybe safely raised outside the organisation (e.g. with a
regulator)
provides that it is a disciplinary matter (a) to victimise a bona fide whistleblower, and (b) for
someone to maliciously make a false allegation
There are resources available to enlightened employers who want to implement robust internal
arrangements, and in particular, the British Standards Institution’s 1998 Code of Practice of
Whistleblowing Arrangements, is available for free4.
Independent Advice
The advice service offered by PCaW has an important role in practice. It offers free, confidential
advice for workers across all sectors who wish to raise a whistleblowing concern and are unsure
whether or how to do it. All advisors have legal training and the advice given is covered by legal
professional privilege. This means that any discussions are not revealed without the whistleblower’s
express consent. They help the individual to consider the options available to them, and they can
raise the concern on the individual’s behalf if asked to do so. They have dealt with over 22,000 cases
since 1993, of which approximately 14,000 are whistleblowing cases. The majority of callers have
raised their concerns with management (approximately 70%). The role of independent and
confidential advice is essential in empowering potential whistleblowers to speak up and building
trust and confidence (see below for more on the history and background to the creation of PCaW).
3 Committee on Standards in Public Life, Third Report (1996), page 48.
4 British Standards Institution (2008) Whistleblowing Arrangements Code of Practice, PAS 1998:2008. Free download
available f
rom www.pcaw.org.uk/bsi.
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ASSESSMENT
PIDA has been a model for other countries, including South Africa and Japan and most recently
Ireland, where a draft law based on it is before the Parliament. PIDA has been praised by the Council
of Europe because of its comprehensive scope, which provides protection to workers across all
sectors for raising concerns internally, with regulators and in certain circumstances more widely with
the media. Through its tiered regime PIDA recognises the various lines of accountability and
promotes organisations engaging in better risk management. PIDA goes beyond financial
malpractice and provides broad categories of wrongdoing, encouraging a broader interpretation of
the public interest. There is no rewards regime, yet people still raise concerns.
In 2007 a survey by Ernst and Young found that 86% of UK senior executives in multinationals said
they felt free to report cases of fraud or corruption, against an average of 54% across mainland
Europe.
In the UK the regulatory system is sector specific and so there is not a single agency that deals with
whistleblowing. PIDA recognises the importance of whistleblowers being able to raise concerns with
regulators, by providing relatively easy protection to those who raise concerns with them. What this
means in practice is that a whistleblower does not have a high burden of evidence in order to be
protected for raising a concern with a regulator. They need to reasonably believe the information is
substantially true (S43F) and be acting in good faith. A multitude of regulatory bodies across the UK
are prescribed under PIDA. Given this regulatory approach, it would be difficult to have one agency
for all sectors - a whistleblowing agency would have to be sector or industry specific.
That does not mean that this approach is not without difficulty as some of the following issues
illustrate: i) the gaps in the regulatory system are also mirrored in the protection for whistleblowers;
ii) the law does not prescribe how a regulator should deal with a concern, or give them any powers
for dealing with an organisation that has attempted to silence a whistleblower or issued threats of
reprisal, (a regulatory power to dispense fines and penalties in these circumstances might mitigate
this issue considerably); iii) what happens when a regulator is disbanded by government (as has
happened recently in the UK with the abolishment of the Audit Commission – the financial regulator
for local authorities and the NHS)?
In addition, PIDA has not been as effective as it could be if all employers and workers knew that both
internal and external disclosures are protected. This is especially true of the public sector: outside of
the health service, PIDA has not been actively promoted by the UK government. GRECO
recommended the UK government do more to promote whistleblowing in the public sector and
found the UK to have only partly implemented this recommendation in 20065. The OECD
recommended the UK “pursue its efforts to make the measures of encouraging and protecting
whistleblowers better known to the general public [emphasis added]”6 as part of an effective anti-
5 GRECO (2006) Second Evaluation Round: Compliance Report on the United Kingdom as adopted by the GRECO at its 30th
Plenary Meeting, Strasbourg, 2006.
(http://www.coe.int/t/dghl/monitoring/greco/evaluations/round2/GrecoRC2(2006)8_Add_UnitedKingdom_EN.pdf)
6 OECD (2005) United Kingdom: Phase 2 Report on the Application of the Convention on Combating Bribery of Foreign
Public Officials in International Business Transactions and the 1997 Recommendation on Combating Bribery in
International Business Transactions, OECD Directorate for Financial and Enterprise Affairs, at 16.
(http://www.oecd.org/dataoecd/62/32/34599062.pdf)
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foreign bribery strategy. Although the Council of Europe praised PIDA in 20107 as an example of
comprehensive whistleblower legislation, the vast majority of UK adults still know nothing about it.
A YouGov survey (2011)8 commissioned by PCaW, found that despite 85% of working adult
respondents saying that they would raise a concern about possible corruption, danger or serious
malpractice at work with their employer, 77% of all adult respondents did not know or thought that
there was no law to protect whistleblowers9. The risk is that where a serious public interest concern
is not properly addressed by the organisation itself, or the matter is so serious it needs to be raised
externally, workers do not realise they have the power to raise it elsewhere nor who is best placed
to handle their disclosure (for example regulator, MP or media). The failure of the government to
champion this legislation means that the law is misunderstood and organisations may be unaware of
the penalties of not getting whistleblowing right.
The number of claims made under PIDA has annually increased from 157 in 1999 to 2,500 in 2011-
2012 (out of a total of 186,300 claims presented to employment tribunals). During 2011- 2012, 2,200
PIDA claims were disposed of, with the majority of claims being settled either privately between the
parties or through the Advice Conciliation and Arbitration Service. Only a small number of claims
succeed at final hearing (roughly 20%) and this largely due to high levels of conciliation and
settlement of such claims.
The UK government refuses to open the register of PIDA claims to public scrutiny and this is another
key failure in fully implementing PIDA. A new rule in 2010 allowed claimants to request the tribunal
to forward a copy of their claim (with details of their concern) to the appropriate regulator, but this
was a compromise measure and open justice has still not been achieved. The lack of transparency in
the tribunal system undermines effective governance by allowing public interest concerns, including
those about wrongdoing or malpractice, to be ‘buried’ in settlements, which do not reach full legal
determination. PCaW argues that even if the register of tribunal claims is not opened up, all
whistleblowing claims should be forwarded to appropriate regulators in order to avoid the public
interest being unwittingly or deliberately traded for private gain.
PCaW considers that it is problematic that PIDA has remained static since 1998 despite a changing
workplace. This demonstrates the value of having a system for oversight and review of law. Some of
the main issues that need to be addressed in a full consultation about the structure and force of
PIDA are set out below:
Vicarious Liability
This loophole has arisen in the context of a case involving three nurses10 who raised a concern about
a colleague lying about his qualifications, which was upheld. Then the nurses were subject to
bullying and harassment from co-workers. One of them received a telephone call threatening her
daughter and to burn down her home. The case proceeded as far as the Court of Appeal, which
found that vicarious liability does not exist in PIDA, as it specifically does in discrimination law. From
the experience of PCaW harassment and bullying by co-workers is not uncommon in whistleblowing
7 Council of Europe Resolution 1729 (2010) Protection of “whistleblowers”
(http://assembly.coe.int/Main.asp?link=/Documents/AdoptedText/ta10/ERES1729.htm)
8 For more details see
http://www.pcaw.org.uk/news_attachments/Results%20for%20PCAW-YouGov%20Survey.pdf.
9 21% of respondents thought that there was no law to protect whistleblowers (Ibid, Note 8).
10 Fecitt and others v NHS Manchester (supra)
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cases and for there to be no protection in this area means whistleblowers could be facing a
‘cardboard shield’ in terms of the protection afforded by PIDA, and that employers who do not do
enough to protect whistleblowers can escape liability altogether.
Widening the coverage of individuals
Recent employment law cases and media stories have highlighted the difficulties of groups such as
students on vocational placements in health and care settings, doctors who work as General
Practitioners, volunteers, non-executive directors of companies, public appointees to Commissions,
priests, partners in accountancy, law and other professions, and foster carers. The lack of protection
for job applicants was highlighted in an Employment Tribunal Appeal case (
BP v Elstone), where an
employee was protected from victimisation by his current employer, having raised a concern with
his previous employer. The tribunal commented that had the claimant been a job applicant he would
not have been protected. Discrimination at pre-employment stage is a worry for workers considering
whether and how to raise a concern. It can be daunting for an individual who has raised a genuine
concern about a danger, risk or malpractice in the workplace and has left the organisation, to know
what to say about why they left their last job. This presents a very difficult dilemma for a
whistleblower who has acted to protect others and it is important to build some protection into the
system, so that whistleblowers are not fearful in such situations. Moreover protection at pre-
employment stages would overcome issues to do with black-listing, which is a fear in some
industries. In research conducted by PCaW it was found that the second most common negative
response to whistleblowing from an employer was refusing to provide a good reference.
Extending the categories of wrongdoing
Gross waste, gross mismanagement and abuse of authority are not included in PIDA but are included
in equivalent US legislation. At a time of austerity and the abolition of the UK’s Audit Commission
(the financial regulator for local government and the National Health Service), PCaW have proposed
that these categories should be included, particularly as what may be deemed as a waste of money
may not in fact be illegal but the public interest would be served if such concerns are raised and
those who raise them are protected. For example it could be a way to encourage workers to raise
concerns about mass over-expenditure in public spending projects. PCaW have suggested a public
interest category would be useful to cover these types of wrongdoing which may not be covered by
the other categories. This would also ensure that PIDA evolves and covers serious ethical concerns
that fall short of a breach of legal obligation.
Gagging clauses
In the PCaW’s experience, little attention has been paid to the anti-gagging provision in PIDA: that is,
section 43J which outlaws any contractual clause that prevents workers from raising a public interest
concern. Case law has highlighted the need for greater attention to be drawn to section 43J and for
there to be tougher enforcement. PCaW’s proposal is for a positive requirement to be placed on
lawyers advising in the settlement of claims, that they advise claimants about their rights under PIDA
and that any such gagging clauses are void.
See below for a quick reference guide to the key provisions of PIDA:
Quick Guide to PIDA and its key provisions for workers who blow the whistle on corruption
Covers most UK workers, including employees, contractors, trainees and agency workers,
police officers, and every worker in the National Health Service (NHS)
Defines wrongdoing broadly to include disclosures about corruption or any other crime, civil
offences (including negligence, breach of contract or administrative law), miscarriages of
justice, dangers to health and safety or the environment, and, importantly, a cover-up of any
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of these; the worker does not have to prove the wrongdoing, nor does it matter if the
persons to whom the wrongdoing is reported are already aware of it
Protects concerns raised internally with an employer (or to the Minister responsible in
appropriate cases), and externally, to one of the many listed regulatory bodies, to the police
in serious cases, and, importantly, to the media in certain circumstances, particularly if the
other routes have been tried and failed and the wrongdoing is on-going
Compensates for detriment (i.e. victimisation) short of dismissal, including injury to feelings,
and those who are dismissed can seek interim relief within 7 days to continue in
employment; those found to have been unfairly dismissed for blowing the whistle are
compensated for their full financial losses (uncapped) which recognises that blacklisting can
occur and that high wage earners can also be whistleblowers
For a snapshot of some of the decisions under PIDA, see Annex A. We have attached at Annex B the
completed table outlining the provisions of PIDA in accordance with the required format for this
piece of research and at Annex C a background note on the creation of PCaW in the early 1990s.
Public Concern at Work
October 2012
© PCaW 2012
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Annex A
Whistleblowing Case Studies
Over the years there been a number of cases that have put pressure on PIDA and the protection
for whistleblowers. We highlight some of the cases below which show some of the weaknesses in
PIDA:
NHS Manchester v Fecitt & Ors [2011] EWCA Civ 1190
Mrs Fecitt and two of her colleagues raised concerns about a fellow employee, Mr Swift,
misrepresenting his professional qualifications to other members of staff at an NHS walk-in centre in
Manchester. Mr Swift admitted that he had misrepresented his qualifications to his colleagues and
apologised. As Mr Swift had not misrepresented his qualifications to the employer and had given
assurances that he would not repeat his behaviour, Mrs Fecitt’s manager decided to take no
action. Mrs Fecitt and her colleagues were not happy with the outcome and persisted with their
complaint to successively more senior levels of management. Relations within the walk-in centre
deteriorated, with some members of staff siding with Mrs Fecitt and her colleagues and others
siding with Mr Swift. All three nurses were subjected to workplace bullying. Mrs Fecitt received an
anonymous telephone call in which the caller had threatened to burn down her house unless she
withdrew her complaint against Mr Swift and a photograph of Mrs Fecitt had been displayed on
Facebook which had caused her distress. Management attempted to encourage the employees at
the walk-in centre to work together, but without success. Eventually, Mrs Fecitt and a colleague
were relocated while another colleague was no longer offered shifts at the walk-in centre, as
management believed this was the only way to resolve the conflict at the site. The Court of Appeal
found that because there is no provision making it unlawful for employees to victimise
whistleblowers and since the employees who had allegedly victimised the Claimants could not
themselves be personally liable under the whistleblowing legislation, no vicarious liability could
attach to the employer, NHS Manchester.
Comment: This case identifies a glaring hole in PIDA with there being no vicarious liability
mechanisms. Moreover it sends the wrong messages to poor managers that they can get away with
doing little or nothing where employees are being bullied by fellow workers.
Street v Derbyshire Unemployed Workers Centre [2004] 4 All ER 839, [2004] IRLR 687, [2005] ICR
97, [2004] EWCA Civ 964
A disclosure must be made in good faith to be protected under the whistleblowing provisions of
PIDA. In this case the Court of Appeal examined what is meant by “good faith”. The Court of Appeal
agreed with the EAT and concluded that a disclosure would not be made in good faith if an ulterior
motive was the predominant purpose of making it, even if the person making the disclosure
reasonably believed that the disclosure was true.
Comment: This case brings motive into good faith and in our submission to the Court of Appeal we
argued that the interpretation of good faith should be ‘making the disclosure honestly’. Dame Janet
Smith in the Shipman Inquiry argued for the removal of good faith. See annex B to PCaW statement
to the Committee for further exploration of this issue.
© PCaW 2012
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Cavendish Munro Professional Risks Management v Geduld [2010] ICR 325, [2009] UKEAT
0195_09_0608, [2010] IRLR 38
In March 2007, Mr Geduld was a director and employee of Cavendish Munro Professional Risks
Management Limited (Cavendish). Following a shareholding dispute, Mr Geduld contacted a solicitor
who in turn wrote to the company stating that Mr Geduld sought legal advice and had been unfairly
prejudiced as a shareholder. Mr Geduld was dismissed and then brought a claim under PIDA. Mr
Geduld won in the employment tribunal but lost in the EAT because the Solicitor’s letter did not
contain a disclosure of information but only an allegation.
Comment: This case has led to confusion existing between disclosures of information and allegations.
This case has meant that a worker who may have a genuine concern and says to his manager that he
has concern about fraud or health and safety etc. may not be protected because they have not
disclosed any further information. It is especially confusing as the test used in PIDA for a disclosure to
a regulator (s43F), the statutory language refers to ‘the information and any allegation in it’. This
anomaly should be clarified by amendment.
Wearn v Care Companions 2802033/2007
Mrs Wearn worked in a nursing home owned by the respondents and raised concerns about staff
shortages and unsuitable equipment amongst other health and safety concerns with the
homeowners. At the same time there was an on-going story in the media about the eviction of one
of the residents as Social Services were refusing to increase their payments to the Home to cover
higher levels of care required. A story appeared in the Sunday People. The respondents believed that
Mrs Wearn was the source of the story and dismissed her for that reason. The ET found that Mrs
Wearn had made internal disclosures to the respondent, but the reason for her dismissal is that the
respondent believed that Mrs Wearn had made disclosures that were damaging to the Home. Mrs
Wearn won her claim for automatic unfair dismissal for breach of the statutory disciplinary and
dismissal procedures but lost her claim on whistleblowing.
Comment: Unlike discrimination cases, there is no protection for workers where they are perceived to
have a particular characteristic. This could be rectified by allowing wrongly identified whistleblowers
to be protected.
BP v Elstone [2010] ICR 879, [2010] IRLR 558, [2010] UKEAT 0141_09_3103
Mr Elstone worked for Petrotechnics and his job involved evaluating safety processes for clients,
including BP. While at Petrotechnics, he made a protected disclosure about safety processes to BP
managers. Petrotechnics found out about this and dismissed the employee for disclosing
confidential information to BP. Mr Elstone then began working as a consultant at BP, but was not
offered further consultancy agreements after the first agreement, because BP became aware that he
had been dismissed from Petrotechnics for disclosing confidential information.
Both the Employment Tribunal and Employment Appeal Tribunal extended PIDA protection to a
whistleblower who had raised a concern in his previous employment and had been victimised by his
current employer when they discovered this. Interestingly, the judgment points out that had the
whistleblower been victimised at point of recruitment, he would not have been protected.
Comment: This case identifies that PIDA protection does not apply at the pre-employment stage and
this needs to be rectified to avoid issues such as blacklisting.
© PCaW 2012
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Private employment rights
Parkins v Sodexho [2001] UKEAT 1239_00_2206
This was an interim relief hearing, Mr Parkins worked for the Respondents for less than a year and
brought a claim for automatic unfair dismissal on the grounds of having made a protected
disclosure. The Claimant argued he had been dismissed for raising concerns about lack of supervision
and that he had to phone an off-site supervisor when he left, and that this was a breach of contract
and the Health and Safety at Work Act 1974. The initial claim failed at Employment Tribunal (ET) who
stated that “an allegation of breach of an employment contract in relation to the performance of
duties comes within the letter or spirit of the statutory provision”. On appeal, the Employment
Appeal Tribunal (EAT) found that this was a breach of legal obligation and that there is no reason to
distinguish a legal obligation which arises under an individual's contract of employment from any
other form of legal obligation.
Comment: Interestingly the ET and EAT could have found that this a protected disclosure on the
ground that the health and safety of any individual has been, is being or is likely to be endangered
(section 43B (1)(d)).
Bengochea M v Citibank 3202885/06
Mr Bengochea was a long standing employee of Citibank and employed as a development director at
the Bank. The claimant moved to different roles within the Bank but in the restructuring there was
confusion about his job title- whether it was Vice President or Managing Director. The claimant said
that he had been dismissed because he had made protected disclosures about his job title. The ET
found the claimant had made a protected disclosure when he raised his concern regarding his job
title, as this was found to be a breach of a legal obligation. The PIDA claim failed because no
detriment was established and the claimant won on the grounds that his dismissal had been
procedurally unfair.
Comment: The ET noted that Counsel for the Respondent argued that it “was difficult to imagine
disclosures with less to do with the public interest than those alleged in the present case”.
In PCaW’s analysis of employment tribunal decisions the failure to investigate grievances has often
been cited as a breach of a legal obligation see:
Hage v Camelon Clinic Ltd 3304511/2009
Ms Hage was a nurse employed at the respondent’s clinic. She started working at the clinic in 2008
and in 2009 reduced her hours. The respondents said Ms Hage was not entitled to have paid rest
breaks. The ET found that raising a concern about failure to deal with the claimant’s grievance is a
protected disclosure.
Kowalska v NKB Ltds
Ms Kowalska worked in a small hotel owned by respondents. The claimant was not given holiday
pay, contractual sick pay and her accommodation pay was more than allowed for a person on
minimum wage. The Claimant was dismissed and took an interim relief claim which she won.
Comment: Claims for the above could be dealt with under wrongful dismissal or breach of contract
claims.
© PCaW 2012
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Annex B
TI Research project: Public Interest Disclosure Act
Yes No
Partial Notes
Broad definition
X
of whistleblowing
Broad definition
X
No specific definition – covers all UK workers as part of UK
of whistleblower
employment protection legislation
Broad definition
X
Very broad in accordance with case law.
of retribution
protection
Internal reporting
X
mechanism
External reporting X
mechanism
Whistleblower
X
In the sense that the whistleblower has a forum for the
participation
resolution of his claim for compensation. Weak in relation
to the issue raised (the substance of the protected
disclosure) and any legal sanction relating thereto
Rewards
X
But law does provide full and uncapped compensation
system
Protection of
X
Law is silent on this, but case law suggests that where
confidentiality
confidentiality is not maintained that will increase
likelihood of reprisal
Anonymous
X
As law requires whistleblower to establish causal link
reports accepted
between disclosure and reprisal, in effect it is incredibly
difficult to be protected for an anonymous disclosure
No sanctions for
X
The law is silent on this but case law has allowed a
misguided
whistleblower to be protected when raising concern that is
reporting
misguided (see Babula v Waltham Forest)
Whistleblower
X
Although UK regulatory system is included in statutory
complaints
framework
authority
Genuine day
X
Right to proceed to employment tribunal
in court
Full range of
X
remedies
Penalties for
X
Save that if a whistleblower succeeds then there is an
retaliation
unlimited compensatory award - highest to date is £5
million
Involvement of
X
multiple actors
© PCaW 2012
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Annex C
BACKGROUND TO THE CREATION OF A DEDICATED WHISTLEBLOWING CHARITY IN THE UK
By the end of the 1980s, public confidence in the ability of British institutions - whether private or
public - to deliver their services safely had suffered. The British public were shocked when it was
revealed that children in care had been abused over a 13-year period by those employed to protect
them; that serious lapses in safety standards had been common prior to the explosion on a north sea
oil rig that killed 167 men; and that a top UK insurance company could collapse leaving behind £34
million in unpaid debts11. In 1990 the Public Interest Research Centre (PIRC) - through its publishing
arm, Social Audit - published the findings of a research project it had conducted into self-regulation
and whistleblowing in UK companies12. The report was the seed from which the first serious civil
society initiative to address whistleblowing in the UK would grow.
One of the report’s key findings was that staff often knew of problems or risks but few organisations
provided adequate mechanisms for staff to raise their concerns in the workplace. Case studies
showed how the absence of such mechanisms often led to misunderstandings, confrontations,
victimisation of the employee and adverse publicity if the concern was unnecessarily aired outside
the company. In the worst cases - as public inquiries into disasters and scandals demonstrated -
genuine opportunities were missed to prevent damage being done. Launched during a press
conference at the Confederation of British Industry in 1990, the CBI’s Director-General Sir John
Banham recommended the PIRC report
Minding Your Own Business as “essential reading for all
corporate managers.”
PIRC and others identified the need for an independent body to address accountability in the
workplace in the public interest. As originally conceived, a new organisation could advise
individuals, help employers, conduct research and promote good practice. The Joseph Rowntree
Charitable Trust offered £250,000 start-up funding in the form of a five-year challenge grant for the
new organisation13.
In 1990 a steering committee14 was set up and consulted widely to determine what, if any, support
existed for such an initiative. The committee spoke to British business and professional
organisations, corporate executives, lawyers, individual whistleblowers and public interest groups in
Britain and the United States. The consultation revealed great interest in the issues of organisational
accountability and whistleblowing, and support for an independent body to address it.
11 The police inquiry into the abuse of children in care led to the conviction in 1991 of three men employed by
Leicestershire County Council including the Officer in Charge of Children’s Homes, Frank Beck. The Cullen Inquiry not only
identified the causes of the explosion on the Piper Alpha oil platform but found that “workers do not want to put their
continued employment in jeopardy through raising a safety issue that might embarrass management.” After the collapse
of the Roger Levitt’s Group - a top UK life insurance company - Levitt was charged with fraud worth £90 million but pleaded
guilty to a lesser charge and served only 180 hours community service.
12 The project was supported by the Nuffield Foundation.
13 A challenge grant required the new body to raise a further £250,000 - either in earned income or by securing other
charitable funds.
14 This steering committee included Marlene Winfield, freelance social policy specialist and author of the PIRC report,
Maurice Frankel of the Campaign for Freedom of Information, Guy Dehn, Legal Officer of the National Consumer Council
(NCC), and Charles Medawar, Director of PIRC.
© PCaW 2012
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It was decided that the new body would obtain charitable status, incorporate as a limited company
and seek designation from the Law Society of England and Wales and the Bar Council as a legal
advice centre. As a charity and limited company, the new body could seek the funding it needed, be
a separate legal entity and limit the liability of its executive – a voluntary Board of Trustees who
would commit their time and expertise to the new venture. As a designated legal advice centre
individuals could seek help in the context of lawyer-client confidentiality. This latter point was
extremely important if the new body was to reassure individuals that it was safe to seek advice
about their concerns outside the workplace.
Surprisingly, charitable status was initially refused by the Charity Commission on the basis that “such
a service would not be in the public interest.” After a year of argument and persuasion15, charitable
status was finally granted in September 199316 and in October 1993, Public Concern at Work – the
whistleblowing charity - was officially launched.
At the heart of the charity’s work is the provision of free legal advice to workers who have witnessed
wrongdoing, malpractice or serious risk in the workplace. This involves helping workers to raise a
concern clearly, constructively and responsibly. PCaW also works with organisations to establish
robust whistleblowing arrangements that strengthen accountability and transparency in the
workplace. All income the charity receives is used to support this work.
In almost 20 years of operations, PCaW has established itself as the leading independent authority
on public interest whistleblowing in the UK and has been instrumental in establishing best practice in
the UK and abroad on this vital anti-corruption issue. The charity campaigned and drafted the UK
whistleblowing law, the Public Interest Disclosure Act. Its best practice model for organisations is
outlined in the British Standards Institution PAS 1998:2008
Whistleblowing Arrangements Code of
Practice (BSICoP), drafted by the charity in conjunction with a large working group drawn from a
wide variety of sectors and interests. PCaW has also built a reputation for providing high quality
consultancy services to UK and international organisations17.
15 Advocating for the new charity, Michael Brindle QC and Christopher McCall QC provided invaluable assistance free of
charge to persuade the Charity Commission to grant charitable status.
16 Ironically, soon after this the Chief Charity Commissioner delivered a public address on the future of UK charities and
selected PCaW as a model of the new breed of charity that meets and develops the public interest.
17 Clients include Lloyds Banking Group, Equitable Life, Bank of England, ITV and the Serious Fraud Office. We have also
provided advice on whistleblowing and legal best practice internationally, including to the governments of Holland, Nigeria,
Canada, Ukraine, South Korea and Japan, World Bank, and UNDP.
© PCaW 2012