EMPLOYMENT ESSAY
Legislation to protect and encourage "whistleblowing" in relation to work issues has proved inadequate.' Discuss.

Whistleblowing by definition is when an employee provides information of illegal activity or any other wrong doing to their employer or supervisor. The concern raised by the employee may be about a fellow employee, a third party outside of the workplace or even the employer and the employee does not necessarily have to be directly affected by the illegal activity to have the right to disclose it. The general consensus is that an employee who makes a “protected disclosure” that is in the public interest should be protected by law from any unfair treatment resulting in making the disclosure. In this essay I will evaluate whether the law protects whistleblowers adequately.

Prior to the Public Interest Disclosure Act 1998 coming into force on the 2nd of July 1999, whistleblowers did not have protection against unfair dismissal. Employees who attempted to expose of illegal activity would face open discrimination by their bosses and fellow employees, they would also face disciplinary action and were often denied of career advancement. The Public Interest Disclosure Act 1998 came into force to protect workers and a worker in this context includes most workers in the public, private and voluntary sectors. The Act does not apply to self-employed workers other than those in the NHS, and voluntary workers such as charity trustees and charity volunteers and police officers. However, not all information that is disclosed by a worker can be protected and if the act cannot protect the whistleblower then they might be in breach of their duty as a worker not to disclose confidential information to the public. An example of this was in Re a Company’s Application (1989) whereby the plaintiff’s company supplied financial advice and managed client’s investment portfolios. The defendant was an employee in a senior position in the company and one of his duties was to supervise the company’s procedures and practices so as to ensure there was compliance with the regulatory requirements imposed. After leaving the company in November 1988, the defendant became a self-employed consultant in connection with the plaintiff’s business and had in his possession confidential information about the company, its client and its business, which were all property of the plaintiff. In December 1988 during a telephone conversation between the plaintiff and the defendant, the defendant tried to extract £10,000 in exchange for not reporting the plaintiff to the Financial Investment Management and Brokers' Regulatory Authority for breach of regulations. The defendant denied this accusation as claimed he wanted the money because as compensation for being unfairly dismissed. The company took the view that in order for the defendant to make the threatened disclosure to Financial Investment Management and Brokers' Regulatory Authority, the defendant would have to disclose of confidential documents and information. The plaintiff obtained an Ex Parte interlocutory injunction to restrain any disclosure of confidential documents or information and an Anton Piller order to remove all of the company’s documents from the defendant's home. The plaintiff subsequently applied to the High Court for a continuance of the injunction. The High Court on 7 February 1989 granted an interlocutory injunction restraining the defendant from making use of confidential documents or confidential information relating to the plaintiff's business. According to section 43B of the Public Interest Disclosure Act, disclosures that qualify protection include ones that a criminal offence has been committed, where a person has failed to comply with an legal obligation, where a miscarriage of justice has occurred, where the health and safety of an individual is endangered and where the environment has been damaged.

The Public Interest Disclosure Act 1998 points out the different outlets that the discloser when whistleblowing and these are disclosure to the employer, disclosure to another responsible person, if the worker reasonably believes the information relates to that person’s conduct or a matter for which they are disclosure made in the course of obtaining legal advice, disclosure to a Minister of the Crown if the worker’s employer is appointed by enactment, disclosure to prescribed persons, and disclosure that meets the conditions of section 43G of the Public Interest Disclosure Act 1998 which talks about conditions for disclosure in other cases and in order for this provision to apply to the worker they must reasonably believe that they will be subjected to detriment if they disclose to their employer, also where there is no significant person the worker must reasonably believe that evidence will be concealed or destroyed if they disclose the information to their employer, furthermore the worker must have already disclosed substantially the same information to either his employer or a prescribed person. Until of recent disclosing information under section 43G would only be safeguarded if the employee had made the disclosure in ‘good faith’ however this condition was abolished under the Enterprise and Regulatory Reform Act 2013. When an employee wants to whistleblow there is a certain whistleblowing policy that the employee needs to be aware of and employers need to make this very clear so that employees know the proper procedure to follow when they want to report misconduct in the office. The employees should be aware of issues such as the kinds of action that will amount to misconduct, they should also know to inform their line manager as soon as they are informed of any misconducting happening or about to happen, the employees should feel comfortable to raise any issues with their employees without fear and they should also feel confortable enough to address the issue with a more senior manager if they feel the need to, and also employees should be aware that they retain the right have the information they provide to employers remain strictly confidential. Although it may seem that this system only benefits the employees, there are several benefits that an efficient whistleblowing policy has to the employers including that this type of system leaves no room for error in the sense that if there is a specific system that the employees have to report misconduct in case there is a serious issue that arises it will not be mishandled or taken lightly and it gives the employees more security in their jobs which will make the business run smooth. And also it reflects well on the employer to have a whistleblowing policy because it shows that they have good business ethics, which is a great concern to the public. As well s having a whistleblowing policy for the employees there should also be training system for the managers and employers that teaches them how to encourage and receive the disclosure in an appropriate manner as well as to teach managers to do the proper research when they receive news about misconduct.

The Pubic Interest Disclosure Act 1998 has proved insufficient over the years in protecting whistleblowers adequately and there are a number of case laws that have proven this, the Street v Derbyshire Unemployed Workers Centre (2004) case is an example of this, this particular case focused mainly on what the true meaning of ‘good faith’ was under the act. The claimant made various accusations of impropriety against the supervisor of the defendant. The candidate then refused to assist in an independent investigation, which was meant to absolve the manager of these accusations and was critical of the claimant. She was terminated and made a claim that she had been terminated because of her confessions and was inevitably safeguarded from unfair dismissal. The tribunal discharged her claim finding that the disclosures required ‘good faith’ which they did not have. The tribunal contemplated the claimant's purpose for making the disclosures and determined that they were driven by personal antagonism. The Employment Appeal Tribunal sustained the decision on the basis that it was not enough for the claimant to have genuinely believed the truth of the disclosures if the purpose for disclosing the information was based on personal antagonism. The Court of Appeal agreed with the tribunal and decided that a disclosure would not be made in good faith if an ulterior motive was the main purpose for making it, even if the person making the disclosure realistically believed that the disclosure was accurate. Parkins v Sodexho Ltd (2002) is another key case that established that breach of an employment contact by the employer could count as a failure to comply with legal obligations. In this particular case the Employment Appeal Tribunal (EAT) took a broad view of the meaning of a 'protected disclosure' under the Public Interest Disclosure Act 1998. The disclosure that was made related to the employer's alleged breach of the claimant's employment contract. The candidate stated that he was terminated after complaining about a lack of sufficient supervision that apparently gave rise to a breach of the health and safety requirements forming part of his employment contract. He claimed that a breach of a contract of employment is a breach of 'any legal obligation' for the purposes of the Employment Rights Act 1996 as modified by the 1998 Act. The tribunal established that his application for interim relief was completely without proof, but his appeal to the Employment Appeal Tribunal was successful. The tribunal stated that it is not adequate, that there has only been a breach of contract. What has to be revealed first is that the breach of the employment contract was a breach of a legal responsibility under that contract. Secondly, there must be a sensible belief on the part of the employee that such a breach has occurred, or is likely to occur.

The breakthrough case that showed the flaws in the Public Interest Disclosure Act 1998, and resulted in a bill proposing to reform the act was the recent Fecitt and others v NHS Manchester (2011) case whereby Ms Fecitt, Ms Woodcock and Ms Hughes were working for the NHS Manchester as registered nurses at a walk-in health centre. In March 2008, they voiced their concerns about another nursing co-worker, Mr Swift, who had bragged about having clinical experience and qualifications that he did not actually have. The employer accepted that in disclosing these concerns, Ms Fecitt, Ms Woodcock and Ms Hughes were making a protected disclosure. Mr Swift then apologised about overstating his credentials and it was agreed that no further action would be taken against him. This did not please Ms Fecitt, Ms Woodcock and Ms Hughes, who continued to investigate the issue, with the consequence that staff relations at the walk-in centre worsened. The three of them were subjected to horrible behaviour from the other staff. They raised complaints about their treatment. Mr Swift made accusations of mistreatment and provocation and Ms Fecitt made an official complaint under the whistleblowing policy. Finally, Ms Fecitt was detached from her supervisory responsibilities and she and Ms Woodcock were redeployed away from the walk-in centre. Ms Hughes, who was a bank nurse, was not given additional work by the company. Ms Fecitt, Ms Woodcock and Ms Hughes all brought employment tribunal proceedings claiming that they had been subject to a detriment as an outcome of their protected disclosure, conflicting with the protection for whistleblowers in s.47B Employment Rights Act 1996. The employment tribunal established that the claims should not succeed. Ms Fecitt, Ms Woodcock and Ms Hughes had suffered losses in that they had been exposed to hostile behaviour by co-workers and also by virtue of the centre’s decision to divert Ms Fecitt and Ms Woodcock. Nevertheless, the tribunal decided that these losses were not “on the ground that” the applicants had made a protected disclosure. Mrs Nixon’s actions were the “only feasible way of resolving” the unmanageable state of the walk-in centre. The applicants appealed against the employment tribunal’s decision, claiming that the tribunal had taken the wrong attitude towards the question of causation. The tribunal seemed to have applied a test that needed the making of the protected disclosure to be “the direct and proximate cause” of the loss suffered by the claimants. The Employment Appeal Tribunal agreed that the tribunal had taken the wrong approach. Where an employee has made a protected disclosure and has then suffered undesirable treatment amounting to a loss, it is for the boss to prove that their actions (or any failure to act) were “in no sense whatsoever” on the grounds of the protected disclosure. The disclosure must be seen as an unimportant part in causing the negative treatment. This judgment brought about the test for causation in whistleblowing claims in proportion to the test that pertains to discrimination cases. The Court of Appeal tried to address two vital issues. The first one being that there was no provision making it illegal for employees to harass whistleblowers. In such a situation there was no reason for the boss to be accountable for the other employees actions. Furthermore, the Court of Appeal observed that the whistleblowing provisions would be breached if the worker's disclosure largely influences the employer's conduct towards the whistleblower. The Court overruled the argument that the protected disclosure must be the main reason for the loss. In this case the Court of Appeal said that the boss had proceeded to resolve the dysfunctional situation in the workplace and not because the applicants had made a disclosure. Consequently, there was no breach. It is now evident that the accuser must meet a greater standard in order to bring a whistleblowing claim where they have been dismissed other then that they have suffered some other disadvantage. Additionally, managers will not be accountable for discrimination committed by their workers on whistleblowers. Whilst the applicants in the Fecitt case blew the whistle on suspected improper conduct by a co-worker it is likely for workers to blow the whistle on suspected breaches of their own employment contracts.

There have been significant changes that have been made by the passing of the

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Annex A: Changes made during the passing of the ERRA
The Public Interest Test
The Public Interest Disclosure Act 1998 amended the ERA and was introduced to protect individuals who spoke out about potential disasters/problems in the workplace, which would be of public interest, following a number of major incidents where lives were lost.
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In the public interest
Up until July 2013, there was a requirement that any disclosure had to be made in “good faith”. The government has removed this requirement and placed more emphasis on the disclosure being in the “public interest” and not for personal gain.
For example, under the revised legislation you would no longer gain protection under the whistleblowing legislation if you allege the school has committed a breach of your terms and conditions of employment. This is unlikely to be a matter in the “public interest” as it is a private matter between you and the school.
If you do have concerns about any breaches of your terms and conditions, these issues should be raised under the school’s grievance procedure.
The situation would be very different, however, if you genuinely believed that a member of the school’s staff was unlawfully taking money from the school or secretly entering into a procurement contract for their personal gain.
In order to be afforded protection against any subsequent detriment or dismissal that is causally linked to your disclosure, you will need to demonstrate that:
• You have reasonable belief of malpractice,
• The disclosure is in the interests of the public and
• You have brought the matter to the school’s attention.
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The case of Parkins v Sodexho8, which ruled that breaches of legal obligations included employment contracts, widened the scope of the legislation and created a loophole, enabling workers to blow the whistle in respect of breaches to their own personal work contracts irrespective of whether the breach related to or concerned a matter of public interest. This is not the way the legislation was intended to operate and has put into question the effectiveness and credibility of the legislation.
Government was led to understand anecdotally that this legal decision had affected the use of Public Interest Disclosure (PID) claims at Employment Tribunals. Individuals were including PID in their claims to access unlimited compensation awards as these awards are uncapped unlike unfair dismissal, with employers choosing to settle these claims rather than risk being liable for an unlimited damages award in the event the Employment Tribunal found in favour of the claimant for breach of a private contract matter.
So as not to have the protections undermined as a whole, Government addressed this issue by amending the definition of all qualifying disclosures, inserting a public interest test, to be satisfied at Employment Tribunal, requiring individuals to show a reasonable belief that their disclosure was made in the public interest.
This change will return the legislation back to its original operating scope, with the protection only applying to matters of genuine public interest Call for evidence: The Whistleblowing Framework
Good Faith
When introducing the public interest test, Government was asked to consider the impact of this test alongside the existing good faith test. Concerns were raised that the introduction of the public interest test would create a dual test for individuals to satisfy, as disclosures already have to be made in good faith.
Calls were made for the removal of the requirement for disclosures to be made in good faith. In considering the situation, Government listened to the concerns raised and also to the judiciary and opted to address the balance of the two tests rather than remove the requirement for good faith completely.
The good faith test was amended so that it is relevant to remedy rather than liability, removing the possibility that an individual’s claim could fail in the event the Employment Tribunal found the disclosure was not made predominantly in good faith. Instead, the Employment Tribunal now has the power to reduce a compensation award by up to 25% if it considers the disclosure was made predominantly in bad faith. This was seen to be a suitable compromise, which retained good faith, but didn’t mean that there were two tests that need to be satisfied (which could have acted as a deterrent).
Vicarious Liability
Employers have always been under a duty of care to afford their workers a level of protection in terms of their health, safety and general working environment.
The ERRA has introduced specific protection from suffering a detriment by a co-worker for making a protected disclosure. This was done in light of both case law9, which indicated the existing protections may not be sufficient, and evidence which came through the Public Inquiry into the Mid Staffordshire NHS Foundation Trust, leading Government to conclude that the law in this area should be strengthened.
As a result of this change, workers who suffer a detriment by a co-worker for making a protected disclosure can bring claims at the Employment Tribunal against both their co- worker and employer, in respect of that detriment.
Government understands that choosing to blow the whistle can be a difficult decision to make and takes the protection of whistleblowers seriously. This change should encourage individuals to take responsibility for their actions in respect of another’s decision to blow the whistle.

BIBLIOGRAPHY
Solicitors, T. (2014). Whistle blowing in the wind. [online] Thompsons.law.co.uk. Available at: http://www.thompsons.law.co.uk/ltext/l1060005.htm [Accessed 4 May. 2014].
Gov.uk, (2014). Whistleblowing - GOV.UK. [online] Available at: https://www.gov.uk/whistleblowing [Accessed 04 May. 2014].
Swinson, J. (2013). THE WHISTLEBLOWING FRAMEWORK CALL FOR EVIDENCE. 1st ed. [ebook] London: Department For Business Innovation And Skills, pp.2-22. Available at: https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/212076/bis-13-953-whistleblowing-framework-call-for-evidence.pdf [Accessed 4 May. 2014].
Pyper, D. (2013). Whistleblowing and gagging clauses: the Public Interest Disclosure Act 1998 - Commons Library Standard Note. [online] UK Parliament. Available at: http://www.parliament.uk/business/publications/research/briefing-papers/SN00248/whistleblowing-and-gagging-clauses-the-public-interest-disclosure-act-1998 [Accessed 4 May. 2014].
Pyper, D. (2014). Whistleblowing and gagging clauses: the Public Interest Disclosure Act 1998. 1st ed. [ebook] Business & Transport Section, pp.3-15. Available at: file:///Users/harunaali-fika/Downloads/SN00248%20(3).pdf [Accessed 4 May. 2014].

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[ 1 ]. 1998 c. 23
[ 2 ]. Ibid
[ 3 ]. National health services
[ 4 ]. (No 001418 of 1988) [1990] BCC 526
[ 5 ]. Meaning from (by or for) one party
[ 6 ]. Ex-parte court injunction
[ 7 ]. Chancery division
[ 8 ]. 1998 c. 23
[ 9 ]. Ibid
[ 10 ]. Ibid
[ 11 ]. 2013 c. 24
[ 12 ]. 1998 c. 23
[ 13 ]. CA 21-Jul-2004
[ 14 ]. Public body in England and Wales and Scotland
[ 15 ]. 2001] UKEAT 1239_00_2206
[ 16 ]. 1996 c 18
[ 17 ]. Her Majesty's Court of Appeal in England
[ 18 ]. Ibid
[ 19 ]. Ibid