Centre for Legal Research, Middlesex University.

<D.B.Lewis@mdx.ac.uk> <S.Homewood@mdx.ac.uk>

Copyright © David Lewis and Stephen Homewood 2004
First Published in the Web Journal of Current Legal Issues

According to its long title, the purpose of the Public Interest Disclosure Act 1998 (PIDA 1998) which, came into force in July 1999, is “to protect individuals who make certain disclosures of information in the public interest”. It does so, primarily, by inserting a new Part IVA into the Employment Rights Act 1996 (ERA 1996).⁽¹⁾ PIDA 1998 became the model for South Africa’s Protected Disclosures Act 2000 but, unlike legislation in Australia and New Zealand⁽²⁾ it contains no provisions for monitoring or review of its provisions and effects. The purpose of this article is to assess the operation of PIDA 1998 in the light of the case law and empirical research (see Lewis, D, Ellis, C, & Kyprianou, A (2001) Lewis, D, Ellis,C, & Kyprianou, A. (2002); Lewis, D, Ruff, A, Ellis, C & Kyprianou, A. (2003); Lewis, D, Ellis, C & Kyprianou, A. (2003)) and to make recommendations for change.

Health and safety disasters (for example, the sinking of the Herald of Free Enterprise, the Lyme Bay drownings and the Piper Alpha explosion), financial scandals (for example, at Maxwell pensions, Doncaster Council, Barlow Clowes, Barings Bank and BCCI) and the work of the Nolan (now Graham) Committee on Standards in Public Life, all emphasised the need to provide greater protection for whistleblowers in this country. As in other jurisdictions, the contribution of whistleblowers to the public interest by revealing wrongdoing has been recognised as important but there was always the fear that they would pay for their disclosures through job loss or other forms of reprisal. This article endeavours to examine the impact that PIDA 1998 has had in its first five years of operation.

Before discussing the scope and contents of PIDA 1998, it is important to outline briefly the common law background (see generally Cripps (1994)). The common law has never given workers a general right to disclose information about their employment. Even the revelation of non-confidential material could be regarded as undermining the implied duty of trust and give rise to an action for breach of contract. In relation to confidential information obtained in the course of employment, the common law again provides protection against disclosure through both express and implied terms. The duty of fidelity can be used to prevent disclosures while the employment subsists and restrictive covenants can be used to inhibit the activities of former employees after the relationship has ceased. However, post-employment covenants will only be enforceable if they can be shown to protect legitimate business interests and are reasonable in all the circumstances. Even in absence of an enforceable post –employment restrictive covenant, ex –employees are bound not to reveal matters learned in confidence during their employment (See Hivac Ltd v Park Royal Ltd [1946] Ch.169 and Attorney –General v Guardian Newspapers (No. 2) [1990] 1 AC 109.) Where employees have allegedly disclosed confidential information in breach of an express or implied term they may seek to invoke a public interest defence to a legal action. Although the common law allows the public interest to be used as a shield against an injunction or damages, it has proved to be a weapon of uncertain strength.

At least since the case of Initial Services v Putterill [1968] 1 QB 396, the law has allowed an exception to the principle of non-disclosure of confidential information where there is 'any misconduct of such a nature that it ought in the public interest to be disclosed to others'. However, the disclosure must be to someone who has an interest in receiving it and, in this case, Lord Denning M.R. was of the opinion that the media had a sufficient interest for these purposes. In Lion Laboratories Ltd v Evans [1985] QB 526, two employees gave a national newspaper copies of internal documents doubting the reliability of the breathalysers manufactured by their employer. The company sought an injunction to prevent publication of the information on the grounds of breach of confidence. The action failed because the employees were found to have 'just cause or excuse' for disclosure. However, the Court of Appeal indicated that the press might not always be the appropriate medium for disclosure. Subsequently, in Re a Company’s Application [1989] IRLR 477, the High Court refused to grant an injunction preventing an employee in the financial services sector from disclosing confidential information about his company to a regulatory body, notwithstanding that the disclosure might be motivated by malice. Although Mr Justice Scott continued an injunction against general disclosure, he held that an employee's duty of confidence did not prevent them disclosing to regulatory authorities matters which it was within the province of those authorities to investigate.

Thus, apart from the situation where an employee reports a breach of statutory duty to a relevant regulatory body, the common law has not provided reliable guidelines about what could be disclosed and to whom. However, one enduring feature of the public interest defence at common law is that it could be available even if a disclosure was tainted by malice or for reward. This may still be relevant as PIDA 1998 usually denies protection to those who are shown to have acted in bad faith.

PIDA 1998 sets out the type of disclosure which can give rise to protection (a ‘qualifying disclosure’); the circumstances in which a ‘qualifying disclosure’ will be protected (a ‘protected disclosure’); and the workers to whom the protection applies. A “disclosure” is not defined for these purposes but, according to Kraus v Penna plc [2004] IRLR 260, it covers both oral and written communications. It should be noted that, in a sense, the approach of the common law to disclosures in the public interest has been maintained i.e. for protection to be afforded the information must be of a particular kind and revealed to an appropriate person. What is different is that the factors to be taken into account are known in advance. Nevertheless, because there is considerable imprecision in the legislation, much will depend on the interpretation given by employment tribunals and the higher courts.

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Turning to the types of issue that may be raised, ERA 1996 s.43B(1) defines a "qualifying disclosure" as one which a worker reasonably believes tends to show a matter falling into one or more of the following: i) a criminal offence; ii) a failure to comply with any legal obligation; iii) a miscarriage of justice; iv) danger to the health and safety of any individual (i.e. not necessarily a worker); v) damage to the environment; vi) the deliberate concealment of information tending to show any of the matters listed above

A number of general observations about these categories should be noted. First, they are not restricted to confidential information and are independent of the common law concept of public interest. Second, there is no requirement for any link between the matter disclosed and the worker's employment. Third, the matter disclosed may have occurred in the past, be currently occurring or likely to occur. Again, according to Kraus v Penna [2004] IRLR 260, ‘likely' means 'more probable than not'. Fourth, ERA 1996 s.43B(2) allows workers to make disclosures about a matter which occurs outside the UK or which is not covered by UK law. Finally, ERA 1996 s.43B(3) states that a disclosure of information will not be protected if the person "commits an offence by making it". An obvious example here is a breach of the Official Secrets Act 1989. In R v Shayler [2003] AC 247 the House of Lords found that the 1989 Act restricted Shayler’s freedom of expression under Article 10(1) of the European Convention on Human Rights but that this was justified under Article 10(2).⁽³⁾

We also learn several points about what amounts to a qualifying disclosure from the case law. In Miklaszewicz v Stolt Ltd [2002] IRLR 344 the Inner House of the Court of Session in Scotland ruled that if a worker was victimised after the legislation came into force it was immaterial whether the disclosure was made before or after that date. Here a disclosure was made to the Inland Revenue well before PIDA 1998 was enacted. Parkins v Sodexho Ltd [2002] IRLR 109 is of considerable importance in that the Employment Appeal Tribunal (EAT) confirmed that category (ii) above includes a failure to comply with a legal obligation which arises from the worker’s own contract of employment. Here Parkins raised a concern about a health and safety issue by maintaining that there was a failure to provide on –site supervision when he had to use a buffing machine.

In Darnton v University of Surrey [2003] IRLR 333, where a lecturer made allegations about the commission of a criminal offence, the EAT held that the determination of the factual accuracy of the allegation may be an important tool in determining whether the worker held the required reasonable belief. However, the reasonable belief must be based on the facts as understood by the worker not as actually found to be the case. More disturbingly, in Kraus v Penna plc [2004] IRLR 260 the EAT decided that “reasonable belief” relates to the information which the worker is disclosing and not to the presence of a legal obligation which does not actually exist. Thus if in fact the employer is under no legal obligation, a worker cannot get protection by claiming that he or she reasonably believed they were. Here Kraus was unable to establish that in the circumstances the respondent had a duty to consult over redundancies. It is to be hoped that the Court of Appeal will reverse this decision since the need to be certain about legal obligations is bound to inhibit some important disclosures.

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ERA 1996 s.43A defines a "protected disclosure" as a qualifying disclosure which is made to the worker's employer or to another responsible person (ERA 1996 s.43C) or in the course of obtaining legal advice (s 43D ERA 1996); to a Minister of the Crown (ERA 1996 s.43E); to a person prescribed by the Secretary of State (ERA 1996 s.43F); or,in limited circumstances, to any other person (for example, the media) (ERA 1996 ss.43G and 43H).

ERA 1996 s.43C(1) protects workers who make qualifying disclosures in good faith to their employer or to another person who is responsible for the matter disclosed. All of the Middlesex University research projects found that whistleblowing procedures usually provide for concerns to be reported to line managers but also prescribe alternative recipients. This reflects the fact that the most appropriate person to contact will depend upon the seriousness and sensitivity of the issues involved and who is suspected of wrongdoing.

Good faith is an issue of fact and cannot be equated with honesty. In Street v Derbyshire Unemployed Workers Centre [2004] IRLR 687, the Court of Appeal stated that employment tribunals should look for the “dominant” or “predominant” purpose of a disclosure. Thus Ms Street’s allegations about her manager were not protected as personal antagonism was her dominant if not sole objective. In the same case the EAT indicated (at p 213) that in assessing the employee’s motive employment tribunals could look both forward and backward from the date of disclosure. However, there are principled objections to looking at a worker's motive in this context. (The issue of personal gain is dealt with below.)

First, the possibility of motivation being examined might deter some important disclosures, for example, in relation to health and safety or serious crime. Second, if motive is relevant, would it not be more consistent with the notion of a human right to freedom of expression if the onus was placed on employers to prove that the worker had acted in bad faith? Third, it could be argued that if a worker reasonably believes that the information is true, the motive for reporting it is irrelevant. This would not necessarily expose employers to great harm. Malicious allegations could be deterred by making it a serious disciplinary offence to report a concern where there were no reasonable grounds for believing that the information supplied was accurate. Indeed, all the Middlesex University research shows that employers are slightly more likely to provide for disciplinary action against those who maliciously report a concern than against those who victimise disclosers.

According to ERA 1996 s.43C(2), workers are to be treated as having made disclosures to their employer if they follow a procedure which the employer has authorised, even if the disclosure is actually made to someone else (for example, an independent person or organisation). In Brothers of Charity Services v Eleady–Cole [2002] EAT/0661/00 the worker raised a concern through a confidential telephone support line operated by an Employee Assistance Programme (EAP) on behalf of the employer. The EAT confirmed that the disclosure was protected under ERA 1996 s.43C(2) as the EAP was contracted to submit anonymised information to the employer. Thus, both here and in the sections outlined below PIDA 1998 provides employers with incentives to introduce procedures for reporting concerns. However, it does not oblige them to do so. In the light of recent health and safety disasters and financial scandals, it could be argued that whistleblowing procedures should be mandatory. The Middlesex University research projects demonstrate that a very high proportion of employers in the sectors surveyed have introduced confidential reporting/whistleblowing procedures.⁽⁴⁾ Good practice and compliance with the law were the reasons most frequently given for introducing such a procedure. Since it may be difficult to report concerns about fraud and malpractice elsewhere, it is understandable why these were the issues most frequently reported via whistleblowing procedures.⁽⁵⁾

Workers who seek legal advice about concerns and reveal to their adviser the issues about which a disclosure may be made are protected by ERA 1996 s.43D. (No mention is made of good faith here). In these circumstances s 43B(4) provides that the legal adviser is bound by professional privilege and cannot make a protected disclosure. Unfortunately PIDA 1998 does not create any advice-giving agency. However, there is a case for establishing a specialist body to ensure that advisory and counselling services are available and to educate the public about the legitimacy of reporting concerns in a democratic society. Currently the charity Public Concern at Work offers help and free legal advice but, like many other charities,it has very limited resources⁽⁶⁾.

By virtue of ERA 1996 s.43E, workers in Government -appointed organisations are protected if they make a disclosure in good faith to a Minister of the Crown rather than their legal employer. It is worth noting that the Minister, like other designated recipients under PIDA 1998, has no duty to take any action in relation to matters which may be disclosed. Nevertheless, those who have knowledge of potential wrongdoing may be held liable for culpable inaction under both the criminal and civil law, for example, in relation to health and safety matters or environmental issues.

Workers who make disclosures in good faith to a person (or class of persons) prescribed for the purpose by the Secretary of State are protected by ERA 1996 s.43F(1)⁽⁷⁾. However, the worker must reasonably believe that i) the matter falls within the remit of the prescribed person, and ii) that the information and any allegation contained in it are substantially true. In relation to the first condition, it should be noted that if a concern is raised which is not within the remit of the recipient that person is not obliged to refer it to the appropriate body. As regards the second requirement, it could be argued that the public interest may not be served if workers are deterred by the requirement to demonstrate their reasonable belief in the “substantial truth” of information and allegations. In addition, workers cannot report what they have been told by another person unless they themselves have a reasonable belief that the matter falls within ERA 1996 s.43B(1).

ERA 1996 s.43G enables workers to make a protected disclosure in other limited circumstances. In order to be protected workers must: i) act in good faith; ii) reasonably believe that the information and any allegation contained in it are substantially true; iii) not act for personal gain (see below); iv) have already disclosed substantially the same information to the employer or to a person prescribed under s 43F,unless they reasonably believe that they would be subject to a detriment for doing so, or that the employer would conceal or destroy the evidence if alerted; and v) act reasonably. For these purposes regard shall be had, in particular, to: (a) the identity of the person to whom the disclosure is made (for example, disclosure to an Member of Parliament may be reasonable but not to the media); (b) the seriousness of the matter; (c) whether there is a continuing failure or one likely to recur; (d) whether the disclosure is made in breach of a duty of confidentiality owed by the employer to another person; (e) any action the employer (or prescribed person) has taken or might have been expected to take in relation to a previous disclosure; (f) whether the worker has complied with any procedure authorised by the employer for making a disclosure. In ALM Ltd v Bladon [2002] IRLR 807 the EAT held that a worker’s disclosure to the Social Services Inspectorate (a non-prescribed regulator) within ten days of raising his concerns internally about care standards in a nursing home was reasonable.

The issue of disclosing for personal gain is problematic. Since there is a separate requirement to demonstrate good faith, it is clear that this is not being used as a test of the worker's motive. The possibility that personal and public interests might coincide is recognised, to some extent, by ERA 1996 s.43L(2). This states that for these purposes a reward payable under any enactment will be disregarded. Cheque book journalism may not be desirable but, if a financial incentive enables one disaster to be avoided, isn't disclosure in the public interest? Recent US Federal Statutes and some State laws which provide protection for whistleblowers encourage reports of wrongdoing by offering rewards (see Callahan,E & Dworkin,T (2000)) We would argue that, if all the other requirements of ERA 1996 s.43G are satisfied, it is inappropriate to oblige workers to prove that their purpose was not personal gain.

Disclosures about exceptionally serious failures are dealt with in ERA 1996 s.43H. In order to be protected workers must fulfil the first three requirements of ERA 1996 s.43G (above). In addition, the relevant failure must be of an exceptionally serious nature and it must be reasonable in all the circumstances to make the disclosure. Again Parliament's concern that disclosures should be no wider than necessary is emphasised by reference, in particular, to the identity of the recipient in determining reasonableness. It would defeat the object of this catch-all section if failures of an exceptionally serious nature were defined by statute. However, the effect is that these will be determined by employment tribunals and the courts on a case–by–case basis. Thus, as with the common law, workers will learn only after the event whether their disclosures were protected.

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Employers are prevented by ERA 1996 s.43J from contracting out of the provisions in Part IVA. This section deals with ‘gagging clauses’ by invalidating a worker’s agreement (whether contained in a contract or settlement of legal proceedings) not to make a protected disclosure. However, it would seem that a clause which prevented the disclosure of information about a type of wrongdoing which is not listed in ERA 1996 s.43B(1) (see above) would still be enforceable. For example, an express term could restrain disclosures about mismanagement but not unlawful maladmininstration.

ERA 1996 s.43K(1) is designed to enable everyone who works to benefit from ERA 1996 Part IVA, irrespective of whether they fall within the definition of 'employee' or 'worker' contained in ERA 1996 s.230. Section 43K(2) extends the definition of employer accordingly. We would argue that granting employment protection rights to the widest range of people is desirable as a matter of principle⁽⁸⁾. Interestingly, the Middlesex University research projects reveal that a significant number of respondents made their procedures available to people who do not work for them. This suggests that there is some appreciation that procedures should exist in order to encourage the reporting of wrongdoing and not merely as a legal defence mechanism. It is beyond the scope of this article to discuss whether society should encourage all citizens to disclose wrongdoing and protect them from victimisation if they do so.

ERA 1996 s.47B(1) provides the right not to be subjected to any detriment ‘on the ground that the worker has made a protected disclosure’. In London Borough of Harrow v Knight [2003] IRLR 140 the EAT held that it is necessary to show that the protected disclosure has caused or influenced the employer to act (or not to act) in the way complained of. Merely to show that ‘but for’ the disclosure the detriment would not have occurred is insufficient. A major concern here is whether tribunals will interpret this section purposively by applying it to those who have been penalised for ‘attempting to make’ a protected disclosure. If they do not, the consequences could be grave - employers will have an incentive to victimise those who are in the process of exposing misdeeds but have not completed the procedure⁽⁹⁾. Although ERA 1996 s.47B(1)does not deal with a detriment imposed by someone who has no direct relationship with the worker, workers may complain that their employer has subjected them to a detriment by failing to protect them from the actions of third parties, for example, another employer.

According to ERA 1996 s.103A, it is automatically unfair to dismiss employees on the grounds that they have made a protected disclosure. Similarly, ERA 1996 s.105(6A) makes it unfair to select employees for redundancy if the reason for doing so is that they have made a protected disclosure. In both situations the normal qualifying period of service and the upper age limit do not apply. In relation to general exclusions and qualifications, it should be noted that ERA 1996 Part IVA applies to Crown employees who are not subject to a certificate exempting them on grounds of national security. However, it does not currently apply to the security services.

Interim relief is provided for in ERA 1996 s.128 and ERA 1996 s.124(1A) allows unlimited compensation to be awarded for dismissal contrary to ERA 1996 ss.103A or 105(6A). The EAT has taken the view that subjecting a whistleblower to a detriment should normally be regarded as a very serious breach of discrimination legislation. In Vento v Chief Constable of West Yorkshire (No.2) [2003] IRLR 102 the Court of Appeal suggested that there should be three broad bands of compensation for injury to feelings in discrimination cases. The top band should normally be between £15,000-£25,000. Thus, in the PIDA 1998 case of Virgo Fidelis School v Boyle [2004] IRLR 268, where a teacher who complained about the management of a voluntary –aided school demonstrated that he suffered clinical depression largely as a result of the employer’s treatment of him, £25,000 was awarded for injury to feelings together with £10,000 aggravated damages. It is evident that large compensatory awards have been made by tribunals and that some settlements have also proved very costly for employers. For example, in Fernandes v Netcom Consultants Ltd (Case 2200060/00), Mr Fernandes was awarded £293,441 on the basis that the 58 year old chief financial officer would not secure similar work in the future.⁽¹⁰⁾

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If the public interest in protecting whistleblowers was never clearly articulated prior to the PIDA 1998, this legislation attempts to do so, albeit in a restrictive fashion. For these purposes the public interest manifests itself in the form of facilitating protected disclosures. In some respects the case law to date has been reasonably helpful but worrying doubts remain about a number of key legal issues. For example, it is of fundamental importance that the test of reasonable belief should apply to both the existence of a legal obligation as well as the information which the worker is disclosing. We have also argued that it is unhelpful to focus attention on the whistleblower’s motive. However, if PIDA 1998 is unamended it is vital that the courts place the onus on employers to establish the lack of good faith.

Although PIDA has been commended for skilfully balancing the interests of the public and of employers’, it could be argued that in reality employers' interests have been given prominence. Indeed, some would argue that internal whistleblowing/confidential reporting procedures can work against the public interest in that they facilitate cover–ups and deprive the public of information about wrongdoing.

In the light of our conclusion that PIDA 1998 has not adequately protected whistleblowers we make the following suggestions for reform. Firstly, in accordance with the basic approach to rights taken by HRA 1998, workers should be given a positive right to report concerns. This should be afforded to all those who work for and receive remuneration from another person or the State. Instead of excluding the security services altogether, it would be preferable to devise special rules for the protection of information about international relations and intelligence. (See, for example, the provisions of the New Zealand Protected Disclosures Act 2000.) However, we believe that it is inappropriate to impose a contractual duty⁽¹¹⁾ on people to disclose wrongdoing unless proper procedures for doing so are in place and provision is made for dealing with possible reprisals (see below). Secondly, workers should be protected if they raise concerns about serious wrongdoing even if it does not amount to a breach of a legal obligation. Thirdly, workers should be protected not only if they have made a protected disclosure but also if they are victimised for attempting to make such a disclosure. Fourthly, legislation should outlaw discrimination against whistleblowers at the hiring stage. Although cynics will argue that victimisation in the recruitment process can easily be concealed, Parliament has already marked its disapproval in relation to discrimination on the grounds of sex and sexual orientation, race and religious belief, disability and trade union membership. In our opinion, workers should have the right to complain about any situation in which they believe they have been victimised for making (or attempting to make) a protected disclosure.

Fifthly, there should be no investigation of a person’s motive for making a disclosure. Workers should be protected if they have reasonable grounds to believe that the information they disclose is true or likely to be true. Sixthly, there should be a statutory duty on employers to establish and maintain effective reporting procedures. Legislation might also ensure that authoritative guidance (for example, via ACAS) is provided about the role and contents of such procedures. Seventhly, union representatives should become prescribed persons so that workers who raise concerns with them would be protected. Eighthly, prescribed persons should be obliged to refer matters that they are not empowered to deal with to someone who is so empowered. Ninthly, a Public Interest Disclosure Agency should be established. Such an agency might receive disclosures, arrange for their investigation by an appropriate authority, provide advisory and counselling services and protect whistleblowers from reprisals. Alternatively, this kind of work might be performed by the new Commission for Equality and Human Rights which the Government is proposing.

Tenthly, legislation should relieve individuals of civil and criminal liability for making a protected disclosure. At present it would appear that if a reasonable belief turned out to be incorrect, defamation proceedings could be brought against a worker who has made a protected disclosure. Where there has been sufficient publication of a concern, a discloser who failed to establish the truth of the allegations would have to rely on the defence of qualified privilege. Since disclosures are normally only protected if they are made in good faith, we would argue that the defence of absolute privilege should be available. Eleventhly, as regards possible retaliation, those who genuinely fear adverse treatment in their employment should be entitled to seek a transfer. Where workers have lost their jobs they should also have the option of choosing reinstatement or re-engagement.

Finally, it remains to be seen how many aspects of PIDA 1988 will be interpreted by the higher courts and whether this legislation will be bolstered by the implementation of the Human Rights Act 1998 and the Freedom of Information Act 2000 (The latter comes fully into force in 2005). As they are public authorities, Section 3(1) HRA 1998 requires employment tribunals to give effect to primary and subordinate legislation in a way which is compatible with the European Convention on Human Rights ‘so far as it is possible to do so’. In addition, s 6 HRA 1998 makes it ‘unlawful for a public authorities to act in a way that is incompatible with a Convention right’. One possibility is that workers employed by public authorities (but not those in the private sector) will be able to use both the PIDA 1988 and the HRA 1988 to justify their disclosures. However, as illustrated in Campbell v Frisbee [2003] ICR 141, the right to freedom of expression may sometimes conflict with the right to privacy under Article 8 of the ECHR. Indeed, Hobby has suggested (Hobby, C (2001) p 58) that “An extension of the law of confidentiality and the development of an individual right to privacy will arm employers with further weapons to be used against workers who blow the whistle”.

Bowers, J, Mitchell, J and Lewis J (1999). Whistleblowing: The New Law (London:Sweet & Maxwell)

Callahan, E & Dworkin, T. Do Good and Get Rich: Financial Incentives for Whistleblowing and the False Claims Act. (1992) 37 Villanova Law Review 273.

Callahan,E & Dworkin, T. (2000) The State of State Whistleblower Protection. 38 American Business Law Journal 99.

Callahan, E, Dworkin, T and Lewis, D.(2004) 'Whistleblowing: Australian, UK and US approaches to disclosure in the public interest’. Virginia Journal of International Law.Vol.44 No.3 pp 879-912.

Cripps, Y (1994) The Legal Implications of Disclosure in the Public Interest,(London: Sweet & Maxwell)

Hobby, C.(2001) Whistleblowing and the Public Interest Disclosure Act 1998 (London: Institute of Employment Rights)

Lewis, D (1995) 'Whistleblowers and Job Security' Modern Law Review 208

Lewis, D (ed.)(2001) Whistleblowing at Work (London: Athlone Press)

Lewis, D, Ellis, C, & Kyprianou, A (2001), “Whistleblowing at work: the results of a survey of procedures in further and higher education”. Education & the Law. Vol.13 No.3 pages 215-225

Lewis, D, Ellis,C, & Kyprianou, A. (2002) A survey of confidential reporting procedures in English and Welsh local authorities (London: Employers Organisation for Local Government)

Lewis, D, Ruff, A, Ellis, C & Kyprianou, A.(2003) A survey of confidential reporting procedures in maintained schools, dioceses and local education authorities. (London: Centre for Legal Research, Middlesex University)

Lewis, D, Ellis, C & Kyprianou, A.(2003) A survey of confidential reporting/whistleblowing procedures in National Health Service Trusts. (London: Centre for Legal Research, Middlesex University)

⁽¹⁾ The references below are to the ERA 1996 as amended.

⁽²⁾ For example, see the Protected Disclosures Act 1994 (New South Wales) and the Protected Disclosures Act 2000 (New Zealand). For a recent comparison of legislation in the UK, US and Australia see: Callahan, E, Dworkin, T and Lewis, D (2004).

⁽³⁾ Article 10(1) states that: 'Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers'. Article 10(2) refers to the necessity for restrictions on this freedom in order to prevent, for example, the disclosure of confidential information. The Human Rights Act ensures that the convention is available in UK law.

⁽⁴⁾ The establishment of such procedures is encouraged by a range of organisations including the Financial Services Authority, the Fraud Advisory Panel, the Committee on Standards in Public Life, the Employers Organisation for Local Government and the Department of Health.

⁽⁵⁾ On the possible ingredients of an effective procedure see Lewis, D(ed.)(2001) pp 57-69

⁽⁶⁾ See the organisation's website at www.pcaw.co.uk

⁽⁷⁾ The Schedule to the Public Interest Disclosure (Prescribed Persons)Order 1999 S.I.1549 [as amended by the Public Interest Disclosure (Prescribed Persons) (Amendment) Order 2003 S.I.1993] specifies the persons prescribed and the description of matters in respect of which they are prescribed. The Schedule includes such bodies as the Audit Commission, Commissioners of the Inland Revenue, Financial Services Authority, Health and Safety Executive and the Environment Agency.

⁽⁸⁾ The Employment Relations Act 1999 s.23 gives the Secretary of State the power to extend employment rights (for example,unfair dismissal) to those not otherwise covered.

⁽⁹⁾ It is worth noting that several US State statutes protect so-called ‘embryonic whistleblowers’. See Callahan, E & Dworkin, T (2000).

⁽¹⁰⁾ For a general review of tribunal decisions see the Public Concern at Work website at www.pcaw.co.uk

⁽¹¹⁾ It is worth noting that employees have a duty to report serious dangers to health and safety under of the Management of Health and Safety at Work Regulations 1999 (S.I. 1999/3242) reg.14.