Public Interest Disclosure Act 1998

The Public Interest Disclosure Act 1998 (c. 23) is an Act of the Parliament of the United Kingdom that protects whistleblowers from detrimental treatment by their employer. Influenced by various financial scandals and accidents, along with the report of the Committee on Standards in Public Life, the bill was introduced to Parliament by Richard Shepherd and given government support, on the condition that it become an amendment to the Employment Rights Act 1996. After receiving the Royal Assent on 2 July 1998, the Act came into force on 2 July 1999. It protects employees who make disclosures of certain types of information, including evidence of illegal activity or damage to the environment, from retribution from their employers, such as dismissal or being passed over for promotion. In cases where such retribution takes place the employee may bring a case before an employment tribunal, which can award compensation.

As a result of the Act, many more employers have instituted internal whistleblowing procedures, although only 38 percent of individuals surveyed worked for a company with such procedures in place . The Act has been criticised for failing to force employers to institute such a policy, containing no provisions preventing the "blacklisting" of employees who make such disclosures, and failing to protect the employee from libel proceedings should their allegation turn out to be false.

Under the Act a non-disclosure agreement (NDA) between an employer and employee, often a condition of compensation for loss of employment for some reason, does not remove a worker’s right to make a protected disclosure, i.e. to blow the whistle. In 2019 a consultation was held on adding limitations on confidentiality clauses, following evidence that some employers used confidentiality clauses to intimidate victims of harassment or discrimination into silence, suggesting that the worker did not have the right to blow the whistle, take a matter to a tribunal, or even discuss with people such as the police, a doctor, or a therapist.

Background

Prior to the 1998 Act, whistleblowers in the United Kingdom had no protection against being dismissed by their employer. Although they could avoid being sued for breach of confidence thanks to a public interest defence, that did not prevent subtle or open victimisation in the workplace, including disciplinary action, dismissal, failure to gain promotion or a pay rise. During the early to mid-1990s, interest in whistleblower protection grew, partially because of a series of financial scandals and health and safety accidents, which investigations into showed could have been prevented if employees had been permitted to voice their concerns, and partially because of the work of the Committee on Standards in Public Life.Lewis (1998) p.325

In 1995 and 1996, two private member's bills dealing with whistleblowers were introduced to Parliament, by Tony Wright and Don Touhig respectively, but both efforts fell through. When Richard Shepherd proposed a similar bill, however, he got government support for it on the condition that it be an amendment to the Employment Rights Act 1996 rather than a new area of law in its own right. Public Concern at Work, a UK-based whistleblowers charity, was involved in the drafting and consultation stages of the bill. The case of Graham Pink added to the pressure to introduce whistleblower protection legislation.

The Public Interest Disclosure Bill was introduced to the House of Commons by Shepherd in 1997, and given its second reading on 12 December before being sent to a committee. After being passed by the Commons it moved to the House of Lords on 27 April 1998, and was passed on 29 June, receiving the Royal Assent on 2 July and becoming the Public Interest Disclosure Act 1998. Originally scheduled to come into force on 1 January 1999, the Act instead became applicable law on 2 July.

Contents

Section 1 of the Act inserts sections 43A to L into the Employment Rights Act 1996, titled "Protected Disclosures". It provides that a disclosure which the whistleblower makes to their employer, a "prescribed person", in the course of seeking legal advice, Ministers of the Crown, individuals appointed by the Secretary of State for that purpose, or, in limited circumstances, "any other person", is protected. In addition, the disclosure must be one which the whistleblower "reasonably believes" shows a criminal offence, a failure to comply with legal obligations, a miscarriage of justice, danger to the health and safety of employees, damage to the environment, or the hiding of information which would show any of the above actions. These disclosures do not have to be of confidential information, and this section does not abolish the public interest defence; in addition, it can be the disclosure of information about actions which have already occurred, are occurring, or could occur in the future. In '' Miklaszewicz v Stolt Offshore Ltd'', the Employment Appeal Tribunal confirmed that the disclosure does not have to have been made after the Act came into force; it is sufficient for the dismissal or other persecution by the employer to have happened after that time.

The list of "prescribed persons" is found in the Public Interest Disclosure (Prescribed Persons) Order 1999, and includes only official bodies; the Health and Safety Executive, the Data Protection Registrar, the Certification Officer, the Environment Agency and the Secretary of State for Trade and Industry. An employee will be protected if he "makes a disclosure in good faith" to one of these people, and "reasonably believes that the relevant failure...is a matter in respect of which the person is prescribed and the information is substantially true".Craig (1999) p.2 Other prescribed persons include the Scottish Environment Protection Agency

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