Whistleblowing and the
Economic Recession: 10
years of the PIDA
Catherine Hobby, School of Law,
University of East London
Protection from Disclosure Act 1998
The Public Interest Disclosure Act (PIDA)
1998, came into force on 2 July 1999 and
amended the Employment Rights Act (ERA)
1996 to provide statutory protection to
whistleblowers against dismissal and
victimisation if they disclose information in
respect of their employer’s criminal,
dangerous or damaging activities.
Protected Disclosure
 A ‘protected disclosure’ is a ‘qualifying disclosure’ under s 43B
of the ERA 1996.
 A qualifying disclosure is a disclosure of information which, in
the reasonable belief of the worker making the disclosure,
relates to the following –






(a)
(b)
(c)
(d)
(e)
(f)
a criminal offence
failure to comply with a legal obligation
a miscarriage of justice
health or safety
environment,
deliberate concealment of any matter falling within any
one of the preceding paragraphs
Protection
Protection is provided if the Qualifying
Disclosure is made good faith to:
 To Employer or Other Responsible Person
 Legal Adviser
 Minister of Crown
 Prescribed Person (Regulator)
 Non-Prescribed Person in Exceptional Cases
Remedies
 Not to be subjected to a detriment
 Automatic Unfair Dismissal
 Unlimited Compensation
 In 2008 employment tribunals received 1,700
claims involving PIDA allegations
Effective Remedy?
“For some, whistleblowing may become a
form of professional suicide that can
effectively end a career”
(Gobert & Punch (2000) ‘Whistleblowers, the
Public Interest and the Public Interest Act
1998’)
Present economic climate can only intensify
workers’ fear regarding future employment
10 Years of PIDA
 Development of legal principles through case
law
 Extension of Prescribed Person List
 Some worker awareness of protection
 Development of Whistleblowing policies
 Increased Recognition of the value of
whistleblowing
 Change in perception of a whistleblower
 Increase in PIDA applications
Key Cases
 Include:
 Street v Derbyshire Unemployed
Workers’Centre (good faith)
 Woodward v Abbey National (ex-employees)
 Virgo Fidelis Senior School v Boyle
(compensation for injury to feelings)
 Bolton School v Evans (PIDA not cover
investigation of concern)
 Cumbria CC v Carlisle- Morgan (vicarious
liability)
Benefits of Whistleblowing
 Individual right but collective responsibility
 Good Practice
 Accountability
 Culture of Openess in Workplace
 Whistleblowing is “both an instrument of good
governance and a manifestation of a more
open culture” (Getting the Balance Right, The
Committee on Standards in Public Life,
January 2005)
Change of Culture?
86% of UK employees would feel comfortable
blowing the whistle if they suspected fraud or
other wrongdoing.
Survey by Ernst & Young June 2007
85% of people in work would raise a
whistleblowing concern internally. If in doubt
about internal route over 50% would raise the
matter externally
YouGov survey May 2007
Limits of PIDA
 Exclusion of civil servants from protection of
PIDA 1998 under s 43B(3) of ERA 1996
 Requirement of good faith
 Need to show reasonable belief
 Burden of Proof on Employee
 Individual Claim
 Not cover hiring
 Judicial Interpretation of provisions
 Data Protection
Whisteblowing Procedures
 PIDA does not require the establishment of a
whistleblowing procedure to allow employees
to raise concerns
 The Act indirectly encourages the
implemenation of effective whistleblowing
policies
 A Whistleblowing policy provides a
mechanism through which concerns can be
addressed
Role of Trade Unions
 Assist in establishing a culture of openness
 Watchdogs
 Support for members who raise concerns
 Representation of whistleblowers
 BUT victimisation of officials who are
recipients of concerns
Consultation: Employment tribunal
claims and the PIDA
 Opened 3rd July and closed 2nd October 2009
 How the substance of how allegations of
underlying abuse in PIDA cases might be
addressed
 Issue raised during passage of Employment
Act 2008
BIS Proposal
 Employment Tribunals to send copies of ET1
or extracts from it
 Only claims accepted by tribunals and where
PIDA is identified as a jurisdiction would be
subject to process
 Express consent of claimant required
 Statutory Instrument to amend Employment
Tribunal Rules
Reward for Whistleblowing?
 Review of Assets Recovery Agency by Home
Office considered the American False Claims
Act 1986. (FCA)
 2006/07, US Government recovered $42 b
under FCA of which $177 m went to
whistleblowers
 Whistleblowing of value in hi-tech, globalised
and out sourcing economy where UK
Government awards massive contracts to
private sector
International
 Article 33 UNCAC
 Report of Working Party established under
Article 29 of 95/46/EC in 2006
 Legislation introduced in countries such as
New Zealand and South Africa
Future
 Whistleblowing claims to rise with increase of
City workers seeking redress?
 Number of tribunal cases where worker
claims victimisation or dismissal for
whistleblowing rose 31% in 2008
 Claims have almost tripled in two years
 Culture of whistleblowing to change further
with possible regulatory reform
 Commercial use of whistleblowing
Way forward
 Promotion of Benefits and Culture of
Whistleblowing
 Adoption of anti-discrimination model of
protection
 Recognition of Advisory Role of Trade Union
Officials
 Mandatory Whistleblowing Procedures
 Increased Regulation & Accountability
 Reward for Whistleblowing
Reform of PIDA
 Reform of PIDA – recognition of
discrimination based on choices
 Removal of the requirement of good faith
 Protection against malicious allegations
 Reasonable belief to be replaced with
reasonable suspicion
 Outlaw discrimination in hiring
 Right to raise concern
Development of the Law
 Promotion of Whistleblowing through
regulatory legislation
 Duty to disclose
 Value of Anonymity v Confidential
 Collective responsibility in the workplace
 Development of the right to disclose based on
the human right of freedom of expression