Whistleblower Legislation Set for Change

Criticism of the protections afforded to whistleblowers has intensified calls for reform of the Public Interest Disclosure Act 1998 (PIDA). Flaws in the legislation have been highlighted by the current media focus on NHS whistleblowers, coupled with a perceived rise in abuse by those seeking to misuse the law on whistleblowing to simply improve their personal circumstances.

NHS Whistleblower Gagging

Claims that NHS whistleblowers were gagged have dominated the national press in recent weeks.

Prominent cases include that of David Bowles, former chairman of United Lincolnshire Hospitals Trust (ULHT), and that of Gary Walker, former chief executive of the ULHT. Mr Bowles claimed that the head of the NHS ignored claims made by him regarding persistently high death rates in a failing hospital trust. Mr Walker, having raised similar issues of patient safety concerns, claimed that the Trust has threatened to sue him for the return of £500,000, consequent upon breach of a post termination confidentiality “gagging” clause, following his dismissal in 2010.

Government Proposals: PIDA fit for purpose?

While the recent Onyango Employment Appeals Tribunal decision (Jan, 2013) may cast doubt on the enforceability of such post termination disclosure restrictions, a movement for change has been spearheaded by the Employment Relations Minister, Jo Swinson.

Although current law protects workers from harassment or bullying by employers, Swinson’s proposed reforms go further by implementing an amendment to PIDA in the government’s flagship Enterprise and Regulatory Reform Bill, scheduled to come into force in April 2013, which will:

• Protect whisleblowers against victimisation by co-workers following a complaint against employers, holding the employer vicariously liable for the co-worker’s behaviour; and
• Provide a defence for employers demonstrating they took all reasonable steps to prevent detrimental treatment by co-workers.

Swinson also supports the proposals with a call for evidence to ensure PIDA is indeed “fit for purpose”. Other key legislative plans seek to balance and augment reform by narrowing the scope for abuse and compelling employees to meet a new “public interest” test in relation to such disclosures as well as by removing the right of employees to claim uncapped compensation for loss of earnings accruing as a consequence.

Conclusion

Reaction to the new proposals has been deeply mixed. While many employers have welcomed the reduction in scope for claims; individuals such as Chubb, who brought the first case under PIDA, as well as organisations such as Public Concern at Work, label it a reform opportunity lost. Others go further contending that UK employee whistleblowing protections will still fall well short of countries such as the USA.

If you would like more information about whistleblowing or other Employment matters, Rollingsons has experienced lawyers who can advise you. Please contact Aneil Balgobin via e-mail ABalgobin@rollingsons.co.uk or by telephone on 0207 611 4848.