Parkins v SODEXHO Ltd [2002] IRLR 109
The Met Office v Edgar [2001] ICR 149
Miklaszewicz v Stolt Offshore Ltd [2002] IRLR 344
The Public Interest Disclosure Act 1998 has now been in force for nearly three years. So far there have been very few reported cases, although both anecdotal evidence and newspaper reports of cases would suggest the provisions are being well used in Employment Tribunals. The Act started life as a Private Members Bill and in response to a number of well publicised whistleblowing cases where employees who blew the whistle were sacked. The Bill was taken up by the Government and came into force on 2 July 1999. The Act amends the Employment Rights Act 1996 where its main provisions are now found.
The purpose of the Act is to strike a balance between the interests of the whistleblowing employee and those of the employer. So whilst there is a wide category of 'protected disclosures' (see box) to get protection an employee must make the disclosure in the accepted way, normally by bringing the matter to the employer itself. Disclosure to the press, which is right at the end of the scale of qualifying disclosures is subject to considerable conditions and must not be for payment. Many employers' response to the Act has been to introduce formal whistleblowing or concern policies which set out a procedure for bringing concerns to the attention of the employer.
The provisions of the Act apply not only to employees but also to the wider definition of worker. A worker who has the protection of the Public Interest Disclosure Act has protection against detriment (Section 47B) and dismissal (Section 103A). Dismissal of a whistleblower is automatically unfair. Interim relief is available (Section 128) and there is no statutory maximum to the compensatory award.
One of the first issues to be referred to the courts in relation to the legislation was when the disclosures had to been made to qualify for protection. Did the legislation only protect those who made qualifying disclosures after 2 July 1999?
Miklaszewicz v Stolt Offshore Ltd is a decision of the Court of Session in Scotland. In 1993, Mr Miklaszewicz, then an employee of Stolt Offshore, reported them to the Inland Revenue for fraudulently trying to change his status from employee to self employed. Stolt dismissed him for contacting the Revenue. Later Stolt were prosecuted by the Revenue and fined. In 1999, Mr Miklaszewicz found himself employed by Stolt again due to a number of TUPE transfers. In September 1999, he was again dismissed, this time purportedly for redundancy. He brought an unfair dismissal claim relying on section 103A. As a preliminary issue it was considered whether or not he could bring a claim relying on a disclosure which was made some six years before the dismissal which was the subject of his Employment Tribunal claim.
Both the EAT and Court of Session found that he could. It was the dismissal itself which triggered the employee's entitlement to rely on the statutory protection provided. It is after dismissal that the Court is required to consider whether the reason for dismissal was because of the disclosure. The Court commented that there was no unfairness to employers in this approach 'Any employer who, since 2 July 1999 is contemplating the dismissal (or victimisation) of an employee for making a qualifying disclosure must be taken to be aware that if he does so the disclosure will be treated as a protected disclosure'. Whether the disclosure was before or after 2 July 1999 is therefore immaterial.
The same point came up in The Met Office v Edgar. Mr Edgar worked at the BBC Weather Centre and in March 1999 made a complaint of bullying and harassment to his employer about the conduct of his manager. His complaint was investigated and the person he had complained about was disciplined.
Mr Edgar had been off sick during the course of the investigation and disciplinary action. He wanted to return to work but in February 2000 he was told that he would not be returning to the BBC weather centre. Mr E said that this was to his detriment both in relation to his career and earning power. He brought his claim in the Tribunal under Section 47B. As a preliminary point the Tribunal determined that despite the fact the original disclosure was made before the Act was in force it would be contrary to public policy not to allow the employee the benefit of the protection of the Act.
Parkins v SODEXHO Ltd is a case which considers the nature of a qualifying disclosure and in particular Section 43 (1)(b) 'that a person has failed, is failing or is likely to fail to comply with any legal obligation to which he is subject'. Mr Perkins was dismissed with less than one year's service so could not bring an ordinary unfair dismissal claim. He said that he was entitled to bring a claim that his dismissal was automatically unfair and an interim relief application because he had been dismissed because he had raised a matter of health and safety and had made a protected disclosure under the Act. Mr Perkins alleged that he was sacked after complaining about a lack of adequate on Ð site supervision which he said gave rise to a breach of contract and therefore involved a protected disclosure within Section 43 (1)(b).
The EAT said that a legal obligation could be one which arose under a contract of employment but that for the purpose of Section 43(1)(b) it is not sufficient that there has simply been a breach of contract. What has to be shown is first a breach of contract as being a breach of a legal obligation under that contract. Secondly, the worker must have a reasonable belief that this has, is, or is likely to happen. Thirdly, the EAT held 'there must be a disclosure of that which is alleged to be the reason for dismissal. In other words, where it is a breach of the contract of employment, the worker is bound to make his case on the basis that the reason for dismissal is that he complained that his employer has broken the contract of employment'.
So although it is possible to show a breach of an employment relationship can be a qualifying disclosure it will only be in the clearest cases that Tribunals will be prepared to find a breach.
For advisers it is important that reasons for detriment or dismissal are fully explored before discounting the possibility of a claim for anyone with less than one year's service. Equally, the Government made clear in introducing the legislation that it was not intended to be a complainers charter and only gave protection as long as internal procedures were used. Courts will be slow to find public interest disclosure where a worker is not prepared to utilise internal concern procedures.
A qualifying disclosure?
1 A 'qualifying disclosure' means any disclosure of information which, in the reasonable belief of the worker making the disclosure, tends to show one or more of the following:
a that a criminal offence has been committed, is being committed or is likely to be committed
b that a person has failed, is failing or is likely to fail to comply with any legal obligation to which he is subject
c that a miscarriage of justice has occurred, is occurring or is likely to occur
d that the health or safety of any individual has been, is being or is likely to be endangered
e that the environment has been, is being or is likely to be damaged, or
f that information tending to show any matter falling within any one of the preceding paragraphs has been, or is likely to be deliberately concealed.