The Coalition is putting already vulnerable whistleblowers in an even worse situation with its ERR Bill

Submitted by sglenister on Wed, 06/03/2013 - 14:21

06 March 2013

By Catherine Hobby, Senior Lecturer, School of Law & Social Sciences, University of East London

The deaths and neglect at Mid-Staffordshire hospitals have revealed the very real risks to the public of preventing whistleblowers from speaking out, but the Coalition's Enterprise and Regulatory Reform Bill will make employees even less likely to take action when they see dangerous conditions at work.

The value of whistleblowing has again been highlighted by recent reports and revelations including the publication of the Francis Report and the resulting claims of Gary Walker, the former chief executive of United Lincolnshire Health Trust. Despite this, there is widespread recognition that the Public Interest Disclosure Act 1998 (PIDA 1998) enacted to protect public interest disclosures is failing whistleblowers.

The final report of the Independent Inquiry into high mortality rates and standards of care provided by Mid-Staffordshire NHS Foundation Trust between 2005 and 2009 was published on 6th February 2013. Its chair, Robert Francis QC, recorded incidents of workers raising concerns which went unheeded on numerous occasions. The report stated ‘openness, transparency and candour’ are necessary attributes for an organisation and that a culture of openness should allow workers to raise concerns without fear. Francis also found Mid-Staffordshire NHS used contractual terms to prevent the disclosure of information that was critical of the Trust and recommended the prohibition of such ‘gagging clauses’ to allow disclosures regarding patient safety and care.

Following publication of the report, Gary Walker revealed in an interview to the BBC Radio 4 Today programme that he was gagged, threatened and prevented by United Lincolnshire Health Trust (ULHT) from raising patient safety concerns. ULHT is one of 14 English NHS trusts being investigated for high death rates following the scandal in Mid-Staffordshire. He spoke out despite signing a confidentiality clause in April 2011 in settlement of his case for unfair dismissal. He spoke of a culture of ‘fear’ and ‘oppression’ that prevented the investigation of legitimate concerns regarding patient care and safety and also claimed that there is widespread use of gagging clauses in the NHS. Gagging clauses in contracts and settlement agreements preventing protected disclosures are void under section 43J of the ERA 1996 but are widely used in settlement of whistleblowing claims. In 2011/12 there were 2,500 PIDA claims to an employment tribunal but it appears that over 75% were settled, with the result that relevant underlying allegations were not exposed or addressed. ULHT originally sought Walker’s silence with a reported £500,000 settlement although it appears that his patient safety concerns were supported by the then Chairman of ULHT, David Bowles, who wrote a letter in 2009 to the Chief Executive of the NHS warning that patients’ lives were at risk because of the setting of unrealistic targets.

Whistleblowers have strong incentives to settle including the legislative limits of PIDA 1998 and difficulties in making an individual employment claim, a situation that will worsen with the Coalition’s proposals to reform employment tribunals. Even if whistleblowers do settle their claims there are continuing consequences, as many are unable to work again within their industry or profession. As Walker said:

So I spent 20 years in the health service and I’m blacklisted from it. I can’t work in the health service again

Blacklisting is not covered by the 1998 Act so an employer is free to refuse employment to a prospective applicant with a history of whistleblowing and the whistleblower will have no cause of action.

Fifteen years after it was enacted to protect whistleblowers, there are calls for the overhaul of PIDA 1998 on the grounds that it is not ‘fit for purpose’. Whistleblower UK, an organisation launched by whistleblowers and supporters in December 2012, is of the view that the Act has failed to protect ‘countless whistleblowers’. Lord Touhig, who was involved in the drafting and consultation stages of the 1998 Act, is of the view that the current legislation is:

dangerous for whistleblowers because people think they have stronger protection under it than they actually do

The Act does not use the term whistleblowing, but provides remedies to workers in respect of victimisation and dismissal for making a ‘protected disclosure’. The legislation inserted provisions into the Employment Rights Act 1996 (ERA 1996) to provide statutory protection to workers in respect of six specific categories of information including concerns relating to a criminal offence, risk to the health and safety of an individual and the deliberate concealment of information. The provisions provide a convoluted three-tiered legislative regime setting out a number of procedural hurdles to be overcome to claim remedies.

Catherine Hobby's publication on whistleblowing is available from the IER shop. Click on the image to read more.
Catherine Hobby's publication on whistleblowing is available from the IER shop. Click on the image to read more.

Despite existing legislative burdens, the Government are seeking to impose additional conditions upon whistleblowers claiming relief after highlighting malpractice or wrongdoing. Deep within the Enterprise and Regulatory Reform Bill 2012-13 (ERR) is clause 15. The clause presents another hurdle to workers victimised for raising concerns by requiring a protected disclosure to be made in the ‘public interest’. This imposition of a public interest test on those who seek to make a claim is significant. Whistleblowing is clearly in the public interest. but demanding workers overcome a statutory definition of it results in a number of problems. Not least that it will generate considerable uncertainly as the test further exposes a claimant to the dangers of restrictive judicial interpretation, which often fails to act in accordance with the spirit of PIDA 1998. Also this obligation further complicates existing provisions that already demand the much criticised element of good faith and so undermines the protective purpose of the 1998 Act. It is regrettable that the amendment is being undertaken at a time when workers are being encouraged to raise concerns within the workplace to prevent wrongdoing such as patient suffering and corruption.

Another difficulty with current legislation is that it fails to include victimisation by co-workers. On 21st February 2013 the Department for Business, Innovation and Design (BIS) announced that it would table an amendment to the ERR to protect workers from detriment, bullying or harassment by other workers for whistleblowing. At present PIDA 1998 only expressly protects workers from victimisation by employers. Existing provisions were narrowly interpreted by the Court of Appeal in its 2011 judgment in NHS Manchester v Fecitt as not to extend to bullying and harassment by co-workers. Under the proposed amendment the employer is to be made vicariously liable for the detrimental acts of co-workers. A defence is given to the employer if they took all reasonable steps to prevent the detrimental treatment. This BIS initiative would extend protection to whistleblowers against victimisation by co-workers. In support of the proposed change, the Employment Relations Minister, Jo Swinson claimed that the "protection offered by whistleblowing legislation is strong but there are always ways to improve it". This amendment will improve the position of whistleblowers with regard to victimisation by colleagues, but the proposal to place a public interest requirement on whistleblowers by the same bill places workers in a worse position overall. Reflecting widespread concerns over the legislative limits of PIDA 1998 Public Concern at Work has campaigned for legal reform in the current session of Parliament and established a Whistleblowing Commission in February 2013 with a remit to:

examine the existing arrangements for workplace whistleblowing and make recommendations for change

It will undertake public consultation in March and is due to report in November. The Commission members include Sarah Veale, Head of Employment Rights at the TUC, as well as the former Court of Appeal judge, Sir Anthony Hooper and John Longworth, the Director General of the British Chamber of Commerce.

As stated in my 2010 IER publication Public interest whistleblowing: 12 years of the Public Interest Disclosure Act 1998, a radical reform of PIDA 1998 is required to provide effective safeguards to those who blow the whistle. A minor amendment to the victimisation provisions at the same time as the insertion of an additional public interest duty does not demonstrate a coherent approach. The Coalition Government have undertaken piecemeal reform without a vital full review of PIDA 1998 considering problematic issues such as the omission of blacklisting, the limited areas of protected information, exclusion of certain workers and the removal of the duty of good faith. The public interest in whistleblowing should be acknowledged and not used as an additional legal barrier to effective legislative protection for workers exposing wrongdoing and malpractice.

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