11 February 2008
The disturbing allegations recently made by an unnamed prison officer with regard to the practice of bugging of solicitors and their prisoner clients in certain prisons, emphasises the important role that whistleblowers play in bringing to light concerns of malpractice within the workplace.
Understandably, when confronted with such practices, potential whistleblowers may find themselves unsure of how best to raise their concerns, both from the point of view of ensuring that the matters are properly investigated and also from the point of view of ensuring that they are not victimised by their employer because of their actions.
Sean Humber and Benjamin Burrows of the Human Rights Department have advised whistleblowers, in both healthcare and prison settings, in relation to their rights and the issues that they need to consider.
Public Interest Disclosure Act 1998
The Public Interest Disclosure Act (PIDA) 1998 sets outs a statutory framework for public whistleblowing. The main purpose of the Act is to encourage a culture of openness within the workplace, and to expose and ultimately prevent instances of malpractice.
To achieve this purpose, the Act provides statutory protection to employees who may otherwise experience victimisation or dismissal as a result of them disclosing their concerns of malpractice within the workplace. The scope of the Act is very wide and potentially covers a wide range of employees and their workplaces.
The Act sets out different avenues in which an employee is able to disclose these concerns. However, for an employee to qualify for protection under the Act they must have acted reasonably in what they chose to disclose and how they chose to disclose these concerns.
Concern of malpractice
Only the disclosure of a concern that relates to a specific category of malpractice may qualify for protection under the Act. These categories include concern over:
- breaches of civil, criminal, regulatory or administrative law
- miscarriages of justice
- dangers to health and safety
- damage to the environment
- attempts to cover-up such malpractice.
To qualify for protection under the Act, an employee must disclose their concerns of malpractice in the workplace in “good faith” (i.e. made honestly).
Avenues for disclosure
The Act identifies certain avenues by which employees may wish to disclose their concerns. These may include either internal or external disclosures. Internal disclosures may be to an employer or designated person with the workplace. External disclosures may be to a prescribed regulatory person or body or to the wider public.
However, in making such a disclosure an employee must satisfy certain criteria to be protected by the Act. This criteria becomes more rigorous according to the more people to which the alleged malpractice is disclosed.
Disclosure to an employer or designated person within the workplace
To make an internal disclosure, an employee must have a reasonable belief that the information disclosed shows that malpractice has occurred, is occurring or is likely to occur (even if this belief is ultimately mistaken).
Disclosure to a regulatory body or person
In addition to satisfying the criteria above, an employee must also have a reasonable belief that the information or any allegation contained in that information are substantially true.
A wider disclosure (e.g. to the media, police or MP)
In addition to satisfying the criteria for both the above, an employee must also show that the disclosure is reasonable in all the circumstances; is not made for any personal gain; and falls into one of the following categories:
(1) that the employee had already raised the concern internally or with a regulatory body or person; or
(2) that the employee reasonably believed that they would be victimised or dismissed if they raised their concerns internally or with a regulatory body or person; or
(3) there was no regulatory body or person available and the employee reasonably believed that the evidence relating to the alleged malpractice was likely to be destroyed or concealed; or
(4) the concern was exceptionally serious.
If the employee satisfies all the above criterion they may be protected by the Act. If the employee subsequently experiences victimisation or dismissal because of their disclosure, they may then bring a claim to an employment tribunal for compensation.
Without knowing the specific nature of an employee’s concerns, it is difficult to provide specific advice as to which avenue provides the most protection. However, after receiving a number of queries from employees within healthcare and prison settings, the following avenues for disclosure should be considered before deciding to blow the whistle.
If an employee is faced with concerns within the NHS, they may initially consider reporting their concerns internally to the NHS Trust as their employer. The Department of Health stipulate that every NHS Trust should have local policies and procedures in place to comply with the provisions of PIDA 1998.
Alternatively, an NHS employee may also initially consider disclosing their concerns directly to the Department of Health, who are also considered to be an employer for the purposes of PIDA 1998.
If, however, the employee feels that disclosing their concerns internally to their employer would not be appropriate in light of the nature of their concerns, then the appropriate regulatory body within the NHS is the Healthcare Commission.
Prison Service employee
Again, if an employee within the Prison Service has concerns of malpractice, they may initially consider reporting their concerns internally to the prison Governor, the Prison Service or the Ministry of Justice as their employers.
If, however, the employee feels that disclosing their concerns internally to their employer would not be appropriate in light of the nature of their concerns, a Prison Service employee may consider disclosing their concerns to the Chief Inspector of Prisons as the most appropriate regulatory persons within the Prison Service.
For further information in relation to making disclosures of alleged malpractice please contact Benjamin Burrows
or Sean Humber
on 020 7650 1200.
Information was correct at time of publishing. See terms and conditions for further details.