Sun, 24 Nov 2013
The government's consultation is the opportunity to address key shortfalls in the current law, says Employment Lawyers Association whistleblowing specialist Anthony Korn The Employment Lawyers Association (ELA) has raised a number of concerns in its response to the Department for Business, Innovation and Skills' (BIS) 'Call for Evidence' on the whistleblowing framework.
Confusing and deficient
In response to the question "do the [statutory] conditions deter whistleblowers from exposing wrongdoing", the committee highlighted a number of areas where the current law is confusing and arguably deficient.
For example, the current statutory conditions attached to 'protected disclosures' to 'prescribed persons' (generally regulatory bodies identified in statutory instruments) or other third party disclosures, while not necessarily unreasonable in themselves, are complex and may deterwhistleblowers from exposing wrongdoing.
It would be better if the list of factors in section 43G(2) of the Employment Rights Act 1996 which apply to disclosures in so-called 'other cases' such as whether the 'whistleblower' had raised the issue internally with the employer before discussing it with a third party such as an MP, or even the press, were considered as part of a list of factors going to the reasonableness of the disclosure.
Concerns were raised in relation to recent case law which suggests that where a whistleblower makes multiple allegations, protection may be lost if the whistleblower did not 'reasonably believe that the information disclosed and any allegation contained in it are substantially true' in relation to each of the matters raised.
In addition, cases such as Bolton School v Evans  IRLR 140 pose difficulties for potentialwhistleblowers; for example, gathering sufficient evidence to establish a 'reasonable belief' that their employer had in fact broken the law without acting unlawfully, particularly as the Court of Appeal in Barbula v Waltham Forest College  IRLR 346 ruled that such a belief is determined 'objectively' rather than 'subjectively'.
Another condition of the current statutory rules is that the worker has a reasonable belief that the employer's conduct falls within one of six listed statutory categories of wrongdoing known as 'qualifying disclosures' within the meaning of section 43B of the Employment Rights Act 1996.
BIS made clear that it is too early to review the additional statutory condition introduced by section 17 of the Enterprise and Regulatory Reform Act 2013 that all such disclosures also have to be in the 'public interest'. However, BIS asked whether there should be a 'catch all' category to cover disclosures which do not fall within the current list. ELA acknowledged that there are categories of wrongdoing which may not be caught by the current list such as a mismanagement of public funds, but was concerned that a 'catch all' category might create uncertainty.
On the other hand, there was a concern that following the Court of Appeal's ruling in the Fecittcase  IRLR 54, a different test of 'causation' applies to actions short of dismissal under Section 48(2) of the Employment Rights Act 1996 to the one that applies to dismissals under section 103A of the Employment Rights Act 1996 thereby giving greater protection to those who are still employed than to those who have been dismissed.
This is because in the former it is only necessary to show that the "protected disclosure" materially influences the employer's treatment of the whistleblower, whereas under section 103Ait is necessary to show that it was the principal reason for dismissal. ELA suggests that the same standard should be applied to both situations.
BIS is currently considering whether potential whistleblowers should be encouraged to 'blow the whistle' by the use of financial incentives as exist in some States in the US, particularly in the financial sector. In this context, BIS asked whether introducing financial incentives would have a 'positive or negative impact on exposing wrongdoing'?
Currently, in the UK, disclosure to a third party or even to a regulator would not be protected in these circumstances because the disclosure was made for 'personal gain'.
On this point, ELA suggested that the current statutory ban on financial incentives be repealed and that this too should be a matter which is considered as part of the overall reasonableness of the disclosure; so that a tribunal could distinguish between genuine financial incentives and 'bounty hunters'. ELA also pointed that if financial incentives are introduced, it would be necessary to consider whether those payments would be taken into account in determining compensation awarded in Employment Tribunal proceedings.
Current statutory conditions which apply to 'protected disclosures' are slightly less onerous when a disclosure is made to a 'prescribed person'. The list of prescribed persons is set out by way of statutory instrument. That instrument has been the subject of some 18 amending instruments since 1999 and it is sometimes difficult to access the current version.
There are also some notable omissions, particularly in the health sector. BIS mooted the possibility that the list could be updated by the Secretary of State but ELA felt the issue was of sufficient importance for the updating to continue to be subject to Parliamentary scrutiny rather than the 'say so' of Ministers.
BIS also raised a series of questions in relation to the scope of whistleblowing protection. Although whisteblower protection extends to 'workers', and there is an extended definition of who is a worker for whistleblowing purposes in Section 434K of the Employment Rights Act 1996, the scope of the legislation is narrower than under the Equality Act 2010.
For example, in a case which is going to the Supreme Court, Bates Van Winkelhof v Clyde and Co LLP  IRLR 992, the Court of Appeal ruled that partners of firms of solicitors and LLP members do not fall within the scope of the definition of a 'worker'. However, in other cases likeEzias v North Glamorgan NHS Trust  IRLR 550, the courts and tribunals have often drawn an analogy between whistleblowing and discrimination law in terms of public interest.
ELA supports the idea of whistleblowing protection being extended to workers not covered by the present statutory provisions. It also suggested that the law should be extended to job applicants who are "blacklisted' as a result of past whistleblowing activities.
Finally, the ELA committee supported further guidance on whistleblowing being given through a voluntary or statutory code of practice.
The BIS call for evidence follows an initiative from Public Concern at Work, a charity which supports whistleblowers, which has set up a commission to review the operation of the current law. The commission is due to report later this month (November).
Article written by Anthony Korn for the Employment Lawyers Association and published by Solicitors Journal on 25th November 2013.
Please click here to view Anthony Korn's profile.