Whistleblowing disclosures

The Public Interest Disclosure Act 1998 (the Act) amended the Employment Rights Act 1996 and created a right to redress, enforceable by tribunal, in the event of unfair discrimination or dismissal by one’s employer as a result of "whistleblowing" - making a disclosure in the public interest.

The Act sets conditions as to the subject matter of the disclosure, the motivation and beliefs of the worker, and the person(s) to whom the disclosure is made.

Purpose of the Act

The Act was introduced in response to the major corporate failures of the 1980s and 1990s, where workers had known of the dangers that led to disaster, but were unwilling or unable to warn of them effectively.

It aims to help prevent such disasters and corporate malpractice in general by encouraging workers with relevant information to come forward responsibly.

The Act seeks to achieve this by offering a right to redress in the event of victimisation if workers raise their concerns in the ways specified in the legislation.

It is also hoped that the Act will promote a change in culture amongst employers, and encourage them to establish procedures to receive disclosures in good faith and act on them appropriately.

Role of the Comptroller and Auditor General and the NAO

The C&AG is a prescribed person under the Act, to whom external disclosures can be made relating to "the proper conduct of public business, fraud, value for money and corruption in relation to the provision of centrally-funded public services".

A full list of the prescribed persons and their remits can be found in the Schedule to Statutory Instrument 2003 No. 1993 (England, Wales and Scotland, as subsequently amended).

The C&AG’s receipt of such disclosures is consistent with his position as the external auditor for the central government sector.

The Act does not require the C&AG to investigate every disclosure he receives; his decision whether or not to investigate is based upon various criteria designed to ensure the most effective use of the resources at his disposal in safeguarding the public interest.

Types of disclosures

The scope of the Act includes disclosures which, in the reasonable belief of the worker, show one or more of the following, taking place either in the past, the present, or likely to take place in the future:

• A crime;
• Breach of a legal obligation (regulatory, administrative, contract law or common law);
• Miscarriage of justice; (for which the appropriate prescribed person in England and Wales is the Chief Executive of the Criminal Cases Review Commission);
• Danger to health and safety; (for which the appropriate prescribed person is the Health and Safety Executive, or the relevant local authority);
• Damage to the environment; (for which the appropriate prescribed person in England and Wales is the Environment Agency); or
• Attempts to cover up such malpractice.

Employment rights

Whistleblowers making an external disclosure to a prescribed person, instead of to their employer or via internal procedures, will be entitled to redress under the Act in the event that they suffer unfair discrimination or dismissal provided they:

• make the disclosure in good faith;
• reasonably believe that the information, and any allegation it contains, are substantially true; and
• reasonably believe that the matter falls within the description of matters for which the person is prescribed.

However, it is up to an employment tribunal to decide after the event whether or not a disclosure was protected under the Act.

The NAO has no powers to determine whether a disclosure is protected, or to intervene in employment relations, and we cannot provide legal advice.

If workers contemplating making a disclosure are in doubt as to their legal rights, they should consider obtaining independent legal advice from an appropriately qualified advisor.

They may also wish to contact Public Concern at Work, a charity specialising in providing advice for whistleblowers, on 020 7404 6609 or visit their website, http://www.pcaw.co.uk.

 

To make a disclosure to the C&AG

Please telephone the NAO: Telephone: 020 7798 7999

Or write to:

The Comptroller and Auditor General
National Audit Office
157-197 Buckingham Palace Road
London SW1W 9SP