Reporter 445, 24 January 1999
index of Reporter 445
THE UNIVERSITY OF LEEDS
Whistleblowing: legal protection for disclosure
1. The Public Interest Disclosure Act 1998 gives protection to whistleblowers but only if certain conditions are met. First, the disclosure has to be about a particular category of concern (see paragraph 2 below). Second, the disclosure must be made in a certain way (see paragraphs 3-8 below).
2. The Act provides protection for a worker only if he/she makes a qualifying disclosure, which is the disclosure of any information which the worker reasonably believes to indicate one or more of the following:
- a criminal offence
- a failure to comply with a legal obligation
- a miscarriage of justice
- a breach of health and safety regulations
- damage to the environment
- attempts to conceal any of the above.
3. When making a qualifying disclosure a worker is protected under the Act only if he/she is acting in good faith, and if he/she uses one of the following specified internal or quasi-internal routes of disclosure (not all of which are necessarily applicable in the university context):
- to the employer, or to a person who has legal responsibility for the matter or whose conduct relates to it, or some other person in accordance with the employer’s procedure
- to a legal adviser in the course of taking legal advice (a category of disclosure to which the ‘good faith’ precondition does not apply)
- to a Minister of the Crown (where the employer is an individual or a body appointed by the Minister)
Additional statutory requirements for external disclosure
- There are additional statutory requirements where a disclosure is made externally. The Act provides for the following three separate situations.
Disclosure to a prescribed person
- This covers disclosure to a prescribed person or regulatory body prescribed by an order made by the Secretary of State for these purposes. In this case, to be covered by the protection afforded by the Act, a worker will have to show that he/she
- reasonably believes that the allegation falls within the remit of that person or body
- reasonably believes that the allegation is made in good faith and is substantially true
- is not acting for personal gain.
General external disclosures
- If making a general external disclosure (e.g. through the press), to be covered by the Act a worker must fulfil the conditions set out in paragraph 5 above, and in addition must also show either that
- he/she believes that he/she will treated to his/her detriment if disclosure is made to the employer internally or to a prescribed person externally; or
- where there is no prescribed person, he/she reasonably believes that relevant evidence will be concealed or destroyed if he/she makes the disclosure to the employer; or
- he/she has already made substantially the same disclosure to an employer or prescribed person and in all the circumstances it is reasonable to make the disclosure.
- In this context, reasonableness will be determined in relation to a variety of considerations including, inter alia: the identity of the person to whom the disclosure is made; the seriousness of the transgression and whether or not it is likely to recur; whether, in making a disclosure to an employer, the whistleblower has complied with his/her employer’s whistleblowing procedure; and any action which the recipient of any previous disclosure has taken.
Exceptionally serious breaches
- While an exceptionally serious breach essentially falls into the category of a general external disclosure, the gravity of such a disclosure means that the requirements under the Act are different. In such a case, paragraphs 6 and 7 above do not apply, and a worker is protected under the Act provided only that he/she can demonstrate that
- he/she is acting in good faith
- he/she reasonably believes that the allegation is substantially true
- he/she is not acting for personal gain
- the disclosure is of a very serious nature
- in all the circumstances of the case, it is reasonable for him/her to make the disclosure.
- The Act provides statutory protection for a worker making a disclosure provided that
(a) the disclosure is covered by one or more of the six categories of qualifying disclosures set out in paragraph 2 above, and
(b) the disclosure is either
(i) an internal or quasi-internal protected disclosure as set out in paragraph 3 above; or
(ii) an external disclosure covered by the statutory requirements set out in paragraphs 5-8 above.
- In essence, to gain protection under the Act, the requirements for external disclosure (other than to a legal adviser) are more stringent than those for internal or quasi-internal disclosure, and the effect of the Act is therefore to encourage whistleblowers so far as possible to raise their concerns internally.