The Public Interest Disclosure Act 1998 (the Act) created a right to redress in the event of being dismissed or subjected to a detriment by one’s employer, or other responsible third party, 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 or dismissal 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 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 persons can make disclosures relating to “the proper conduct of public business, value for money, fraud and corruption in relation to the provision of public services”.
A full list of the prescribed persons and their remits can be found on the Department for Business, Energy and Industrial Strategy website. The Department has also published guidance for prescribed persons.
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.
We deal with whistleblowing concerns in the same manner as all concerns raised with us. Concerns raised with us can be followed up in a number of ways. How we work is explained in the Our work section.
Types of disclosures
The scope of the Act includes disclosures which, in the reasonable belief of the worker, is in the public interest and tend to 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.
Whistleblowers making an external disclosure to the appropriate prescribed person, instead of to their employer or via internal procedures, will be entitled to redress under the Act in the event that they are subjected to a detriment or are dismissed provided they:
- reasonably believe that the matter falls within one of the types of disclosure referred to above and that the disclosure is in the public interest;
- 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 and therefore whether a dismissal was automatically unfair or whether a detriment was unlawful.
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 you are considering making a disclosure under the Public Interest Disclosure Act you may wish to consider obtaining independent legal advice from an appropriately qualified advisor.
You may also find it helpful 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 on: 020 7798 7999
Or write to:
The Comptroller and Auditor General
National Audit Office
157-197 Buckingham Palace Road
London SW1W 9SP
Or contact us using our contact form.