Some interesting results from last month’s survey on the subject of tribunal fees. The vast majority of you thought that fees should stay (72%) and 100% of those who voted said that, if they were abolished, tribunals should be more willing to make significant costs awards – perhaps the tribunal is listening as, in a case reported only last week, a claimant who made up a discrimination claim was ordered to pay £10,000 towards the other side’s costs. Full survey results are here.
This week we look at the vexed issue of whistleblowing and, in particular, whether there should be a public interest element to every claim.
Whistleblowing legislation is an essential part of the law in an open and fair society. It enables someone to speak out should an organisation be engaged in an illegal activity or in endangering a person’s health.
Something of high quality loses its worth if it moves away from its purpose and is spread too wide. Whistleblowing legislation must not be drafted so loosely that anyone claiming breach of contract can class themselves as a 'whistleblower'. Otherwise the legislation will lose respect and impact.
When the Public Interest Disclosure Act came out in 1998, the tribunals assumed there had to be an element of public interest. Then in the 2002 case of Parkins v Sodexho, breach of an employment contract was held to be a legal breach worthy of whistleblowing status. Any employee who felt their rights had been breached suddenly became a whistleblower. In 2013 the legislation was amended quite rightly to require a public interest element. This did not rule out breaches of an employee’s working conditions but they could not be ones limited just to that person’s interests. Someone complaining about a non-payment of bonus would no longer be able to sue as a whistleblower; someone complaining that doctors in a hospital are overworked would.
The problem is that when adding in the public interest test, the old 'good faith' test was removed. This was a very useful check that stated the predominant motive of the disclosure had to be to correct the wrongdoing. If the dominant motive was an ulterior one, for example antagonism against your boss or wanting to establish a bargaining position with your employer, then there was no protection as a whistleblower. The element of good faith is now only a factor in the damages payable. The absence of good faith allows for the ridiculous situation we so often see of a group of employees realising that their wrongdoing is about to be discovered. They then all immediately accuse the others, each person stating that they are the whistleblower. This might at times be in the public interest but the persons will have acted with the motive of protecting their own position. They should not be classed as whistleblowers.
From Clive Ponting to the current spate of disclosures in the NHS, whistleblowers play an important role in our society. They must be protected but to do so, the public must have respect for the legal framework that is designed to offer that protection. The public interest test is an important clarification of what was always intended to be part of the legislation. Like the good faith test, it has to be a key part of the legislation. Something that an employee must prove before they can call themselves a whistleblower. Otherwise we will continue to hear grumblings and complaints that the legislation protects ‘whingers’ and people seeking to sue their employer when they do not have the legal basis for any other claim. Now that the public interest test has been made an express part of the law, we should be confident that our legislation is of high quality and the people who use it do so for all the right reasons.
Limiting whistleblower protection to those employees who reasonably believe that they are making their disclosure 'in the public interest' only serves to deprive unfairly treated employees from valuable statutory protection and creates further uncertainty as to exactly who can expect to be protected by the legislation.
I accept that when the Public Interest Disclosure Act was first implemented in 1998, its original purpose was, at least in part, to protect those people in large organisations, usually within the public sector, who suffered at the hands of their employers after exposing their wrongdoing. Over the years the legislation was interpreted in such a way that private individuals could also benefit from the statutory protection if they ‘blew the whistle’ on their employer’s wrongdoing in respect of their own personal employment contract. While such a situation may not have been within parliament’s mind when the legislation was originally enacted, why shouldn’t employees in that position be protected? An employer shouldn’t be able to get away with wrongdoing, no matter how small it is, and if an employee is brave enough to point out their employer’s transgressions, surely that employee should be protected from being mistreated or, worse, dismissed by their employer.
The 2013 amendment to whistleblowing legislation introduced a public interest requirement which many of us expected to mean that whistleblower protection would now be reserved only for those who blew the whistle on big employers. These are organisations whose activities had an impact on the lives of the public at large, such as the NHS, local councils or big businesses like supermarket chains or utility companies. On the contrary, recent case law has made it clear that just 100 people can be a big enough group to satisfy the new public interest requirement, which only goes to show that the public interest really doesn’t need to be very ‘public’ at all.
The lack of any definition around the term ‘public interest’ just leaves unsatisfactory levels of uncertainty for employees. If you ‘blow the whistle’ about something that affects just a few of your colleagues, or perhaps just one other person, is that enough to make your disclosure ‘in the public interest’? Good question. We’ll have to wait and see, but recent case law suggests it would be. However, a literal interpretation of the word ‘public’ would suggest otherwise. The Oxford English Dictionary defines the adjective use of the word ‘public’ as something which is 'open to general observation, view or knowledge'. I would seriously question whether a matter which affects just 100 people really fits within that definition.
Whistleblowing legislation should protect those who are brave enough to challenge their employer’s unacceptable behaviour, irrespective of its size. While I accept that there need to be some parameters around that to protect employers from spurious claims, the question of how widely the relevant issue affects ‘the public’ shouldn’t matter. Genuine whistleblowers who raise a legitimate concern deserve to be able to speak out in the certainty that they will be protected if their employer doesn’t take kindly to their decision to make a disclosure. It shouldn’t matter if the ‘public’ (whoever they are?) are interested or not.