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Public Interest Disclosure Act 1998: protecting whistleblowers [ UK ] – INDIA can do this also.

Posted by ekavi on June 17, 2006

Public Interest Disclosure Act: protecting whistleblowers

Source: Freshfields July/August 1999

The Public Interest Disclosure Act 1998, which provides employees with protection from dismissal or other detriment when they 'blow the whistle' on their employers, came into force on 2 July. The Act amends the Employment Rights Act 1999 and a summary of how the Act works is set out below.

What disclosures are protected?
An employee must make a 'protected disclosure' to benefit from the provisions of the Act. This means that it must disclose one of a list of specified malpractices. The disclosure must also comply with a set of conditions which vary according to whom the disclosure is made.

The specified list of disclosures
The disclosure must show one of a specified list of malpractices. These are:

  • a criminal offence;
  • failure to comply with a legal obligation;
  • miscarriage of justice;
  • endangerment of a person's health and safety;
  • damage to the environment; and
  • concealment of any of these malpractices.

Disclosure to an employer
A disclosure to an employer will be protected if the employee makes it in good faith and reasonably believes it shows one of the malpractices.

Disclosure to a legal adviser
Any disclosure to a legal adviser need not be made in good faith. An employee must simply hold a reasonable belief that his disclosure shows one of the specified malpractices.

Disclosure to a regulator
The Secretary of State for Trade and Industry, Stephen Byers, has designated certain regulatory bodies to which disclosures may be made. If employees make a disclosure to a regulator they must:

  • make the disclosure in good faith;
  • reasonably believe that the malpractice falls within the body's remit; and
  • reasonably believe that the information disclosed is substantially true.

The list of designated bodies can be found in a new statutory instrument which also came into force on 2 July.

External disclosures
Not surprisingly, employees making a disclosure to someone other than their employer, legal adviser or an appropriate regulatory body must satisfy a harder test. Employees must:

  • make the disclosure in good faith;
  • reasonably believe that the information is substantially true;
  • not make the disclosure for personal gain; and
  • reasonably believe they will suffer detriment if they make the disclosure to the regulator (where a regulator has been designated) or that evidence will be concealed or destroyed if they make the disclosure to their employer (where no regulator is designated). Alternatively, employees will be protected if they have already made the same disclosure to their employer or the regulator.

In addition to these criteria, it must be reasonable in all circumstances for employees to make the disclosure.

What protection is afforded?
Protection against:

  • dismissal; and
  • other detriment.

How will the rights be enforced?
They will be enforced by complaint to an industrial tribunal. Just and equitable compensation will be awarded where a successful complaint of detriment is made. In cases of dismissal, it will be automatically unfair for an employee to be dismissed for making a protected disclosure. But the cap on unfair dismissal compensation – £12,000 – will not apply in cases where employees are dismissed or selected for redundancy because they made a protected disclosure.

Steps an employer should take
Most employers will want to consider introducing an internal public interest disclosure policy. Not only will this demonstrate their commitment to the Act's provisions, but it may also discourage employees from taking their disclosure elsewhere. Under the Act's provisions, employees can choose between disclosing to their employer and disclosing to the regulator if one exists. An employee is more likely to opt for the employer disclosure route if there is a clear process by which the disclosure can be made to the employer. Moreover, one of the issues a court will need to bear in mind in deciding whether an employee acted reasonably in disclosing to an external body other than the regulator is whether the employee followed any internal procedures for disclosure. Care needs to be taken that any policy is not confused with an internal grievance procedure. Although upon occasions the subject matter of a public interest disclosure may appear to be very similar to an employee grievance, the steps an employer should take to deal with it are different.

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