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Whistleblowing law widens its protective net

<b>The law protecting whistleblowers has been in force for three years. Janet Gaymer looks at the lessons learned</b>

It is easy to forget about employment legislation once the hype surrounding its arrival has subsided. The law relating to whistleblowing is an example of this. Yet since it came into force three years ago, there have been 1,200 claims under the Public Interest Disclosure Act.

This is the law that allows workers to disclose certain types of malpractice and obtain protection in relation to that disclosure, provided that it relates to issues such as the likely commission of a criminal offence, endangerment of health or safety or failure to comply with any legal obligation.

Dismissing a worker for making such a protected disclosure will automatically be judged as an unfair dismissal. Employees do not have to have one years continuous service in order to bring such a claim. Similar protection applies in relation to selection for redundancy and participation in unofficial industrial action.

Interest in the whistleblowing legislation hasnt been allowed to wane in quite the same way as other pieces of employment law. The role of the whistleblower has assumed greater importance since the Enron scandal and subsequent emphasis on identifying and dealing with malpractice as part of efficient risk management procedures. So what are the lessons which have been learned to date?

An important point to note is the potentially wide application of the legislation. Take the case of one employee who brought a claim of automatic unfair dismissal under the Act. He argued that the reason for his dismissal was because he had informed his manager about lack of supervision which was an infringement of his contract of employment and a protected internal disclosure. The appeal tribunal allowed the employees appeal, noting that the legislation was broadly drawn and could include such cases. All that was required was that the individual should have a reasonable belief that the disclosedinformation indicated malpractice.

The whistleblowing legislation has also been invoked in the context of Employee Assistance Programmes (EAPs). The employer in this instance had a commercial contract with a third party to provide the programme to which all employees had access. There was a confidential telephone support service from which staff could seek assistance on any matter that was causing them concern. One employee used this facility to express his concerns that other employees were bringing pornographic material and illegal substances into the workplace. The question which had to be decided was whether this type of disclosure was in accordance with a procedure authorised by the employer and therefore protected under the Act.

The employer argued that the Act should only cover the kind of situation where a company sets up a specific procedure in relation to qualifying disclosures. However, the tribunal decided it was not necessary for the purposes of the case to give an exhaustive definition of the kind of procedures or disclosures that would be protected, and therefore the disclosure made under the EAP in this case would be protected by the Act.

When the Act was introduced, there was concern that it could be used by disaffected workers in order to pursue perceived grievances. One such case involved an employee who was alleging injury at work. A video of a hoist had been passed to the employees solicitors as evidence in his personal injury claim. On learning about the existence of the video, the employer became concerned about the circumstances in which the video had been made whether by a fellow employee or an outsider and spoke to the employee about what would happen if he failed to disclose who had made the video.

The employee resigned, then claimed constructive dismissal on the grounds that the dismissal was unfair because he had made a protected disclosure. The tribunal held that the steps the employer took were not because of any protected disclosure relating to health and safety, but due to concern about a perceived breach of the confidentiality of the employers manufacturing processes.

Many cases do not reach a hearing 70% of claims are settled. But the developing case-law does shed some light, on a subject of increasing importance in a risk-averse world.


Janet Gaymer is senior partner at Simmons & Simmons