Governance Guide - Public Interest Disclosure

This section deals with the procedures involved in making any form of disclosure covered by the 1998 Act.

What is Public Interest Disclosure?

The Public Interest Disclosure Act 1998 ( OPSI ), which came into force in July 1999, introduced a policy to provide strong protection from dismissal or other sanction for workers who report wrongdoings that they believe, in good faith, to be true. It enables workers who blow the whistle about wrongdoing to complain to an employment tribunal if they are dismissed or suffer any other form of detriment for doing so. Only employees can complain of unfair dismissal, but workers who are not employees can complain that they have been subjected to a detriment if their contracts are terminated because they have made a protected disclosure. The legislation covers workers in the public sector (with some exceptions, e.g. those who work in the security services) as well as the private sector.

What Protection does the Act Give?

The legislation does not introduce a general protection for whistleblowers in all circumstances. A disclosure will qualify for protection if, in the reasonable belief of the worker making it, it tends to show that one or more of the following has occurred, is occurring or is likely to occur:

• a criminal offence;
• a failure to comply with a legal obligation;
• a miscarriage of justice;
• the endangering of an individual s health and safety;
• damage to the environment;
• deliberate concealment of information tending to show any of the above

When are disclosures protected?

A qualifying disclosure will be protected under the Act if it is made:

• in good faith to the workers employer (either directly or through internal procedures authorised by the employer), or to another person whom the worker reasonably believes is solely or mainly responsible for the failure in question;
• to a legal adviser in the course of obtaining legal advice;
• in good faith to a Government Minister by a worker employed in a Government appointed organisation such as a non-departmental public body;
• to a person or body prescribed by the Secretary of State in Statutory Instrument 1999 No 1549 (a prescribed person), e.g. the Health and Safety Executive

In the last case the worker must make the disclosure in good faith, reasonably believe that the information and any allegation in it are substantially true, and reasonably believe that the matter falls within the description of matters for which the person has been prescribed.

Are qualifying disclosures protected?

Qualifying disclosures will also be protected if they are made other than Whistleblowing described in Para 3, provided that the worker makes the disclosure in good faith, reasonably believes that the information and any allegation contained in it are substantially true, and does not act for personal gain. One or more of the following conditions must also apply:

• the worker reasonably believed that he or she would be victimised if he or she had made the disclosure to the employer or to a prescribed person;
• there was no prescribed person and the worker reasonably believed that disclosure to the employer would result in the destruction or concealment of evidence;
• the worker had already disclosed substantially the same information to the employer or a prescribed person

It must also be reasonable for the worker to make the disclosure. In deciding the reasonableness of the disclosure, an employment tribunal will consider all the circumstances. This will include the identity of the person to whom the disclosure was made, the seriousness of the concern, whether the failure is continuing or likely to occur, whether the disclosure breached a duty of confidentiality which the employer owed a third party, what action has been taken or might reasonably be expected to have been taken if the disclosure was previously made to the employer or a prescribed person, and whether the worker complied with any approved internal procedures if the disclosure was previously made to the employer.

Exceptionally serious failure disclosures

A disclosure about an exceptionally serious failure made other than described in Para 3 will be protected if the worker makes the disclosure in good faith, reasonably believes that the information disclosed and any allegation contained in it are substantially true and does not act for personal gain provided that it is reasonable for the worker to make the disclosure, having regard, in particular, to the identity of the person to whom the disclosure is made. It will be for the employment tribunals to consider whether any particular failure is exceptionally serious: this is a matter of fact, not of a workers personal belief.

What should I do if I become aware of wrongdoing?

First, you should raise the issue with your line manager. If, for any reason, you would find that difficult you should report the matter to another senior officer.

Will I be protected if I blow the whistle before going through the internal procedures?

Only you can make this judgement, and in doing so you will need to consider the preceding paragraphs carefully. It is preferable and this is at the heart of the Public Interest Disclosure Act to raise the matter internally if appropriate and practical. It is after all in the interests of the organisation and its workforce that issues and concerns are aired in this way. If you are in any doubt, you should speak to a senior officer. Your conversation should be treated in absolute confidence.

Do get advice

If there is no Whistleblowing policy or you are still not sure how to raise your concern internally or externally, do get advice. You can contact NIAO directly on 028 9025 1023 or Protect, a charity specialising in providing advice for whistleblowers, on 020 3117 2520 or through their website at: https://protect-advice.org.uk/

Other disclosures covered by the 1998 Act

These procedures should also be used if you wish to make any other disclosure covered by the 1998 Act.