Plan for ‘public-interest test’ is wrong, argues Public Concern at Work’s legal director

By Shonali Routray | 9 August 2012

In the aftermath of a scandal comes the soul-searching: why did no one come forward with a warning? Or, if someone did, why did no one listen?

The public is questioning why flaws in security for the Olympics were not picked up earlier, or why problems in setting the Libor inter-bank rate of interest were not addressed when the alarm was first raised in 2008.

But the government is planning to construct yet another barrier for UK whistleblowers to climb before they can disclose information that badly needs to be out in the open.

“The government’s proposal as drafted would make it harder for honest and genuine whistleblowers to prevail”
 – Shonali Routray, legal director, Public Concern at Work

Vince Cable, business secretary, is leading through Parliament the Enterprise and Regulatory Reform Bill that includes a poorly thought-out proposal to introduce a public-interest test in whistleblowing legislation.

At Public Concern at Work, we help whistleblowers every day. They come to us for advice about exposing wrongdoing of all sorts, anything from suppliers overcharging in government contracts to targets being forged to secure bonuses.

We are concerned that the bill will create a minefield for the honest and genuine whistleblower who is seeking to prevent a disaster or to highlight potential danger, malpractice or wrongdoing at work.

The government wants to introduce a subjective public-interest test for whistleblowers who bring claims for victimisation or dismissal. This means that whistleblowers would have to prove that their release of information was truly in the public interest.

This would be in addition to ensuring that their disclosure fits into one of the categories of wrongdoing set out under the Public Interest Disclosure Act 1998 (PIDA). These include criminal offences, miscarriages of justice, ‘health and safety’ breaches, and dangers to the environment.

The premise behind the government’s decision to change this is a loophole that arose from a case at the Employment Appeal Tribunal, Parkins v Sodexho, which widened the public-interest purpose of PIDA to cover workers who claim breaches in their employment contracts. Concerns have been raised about the law being abused by City bankers using it to raise issues about their bonus payments.

In our analysis of employment tribunals from 2009/2010, about 10 per cent of 464 judgments concerned issues relating to employment rights, such as breaches in grievance procedures. In one case, a banker made over 40 ‘disclosures’ about the job title.

We agree that this loophole needs to be tightened, but the problem is not so bad that the government should do so in haste without full consultation with trades unions and employers.

The government’s proposal as drafted would make it harder for honest and genuine whistleblowers to prevail.

We constantly hear stories about the difficulties for whistleblowers to speak up and gain the protection supposedly provided by the law.

For the prospective whistleblower, this could put them off raising an early suspicion or a minor issue that could be indicative of a wider concern. For example, loose electrical wiring was deemed to be the cause of the rail disaster at Clapham Junction in 1989.

Instead, the proposed law will create a field day for lawyers who will tie up cases in satellite litigation with much time being spent arguing about what is – or is not – in the public interest, and whether the whistleblower could have had a reasonable belief of this.

At a time when litigants in person are also becoming increasingly commonplace in employment tribunals, the government’s plan will make it all the more difficult for the honest and genuine whistleblower. It will likely fuel a culture of silence, with the only winners being lawyers.

The inquiry into the Mid-Staffordshire NHS Foundation Trust, and another into the Bristol Royal Infirmarybefore it, make clear the importance of whistleblower protection. Therefore, the government’s stance on this is all the more worrying.

Rather than piecemeal reform that is being suggested by the government, there is room for a wider consultation on whistleblowing and the protection that is offered. The whistleblowing law is over a decade old, and is ripe for reform. A review of gagging clauses imposed by the NHS and other employers is also needed.

The government’s proposal would introduce a further barrier for whistleblowers. But it is also a missed opportunity to reinvigorate our law to protect whistleblowers.

Shonali Routray is legal director of Public Concern at Work, a charity that provides advice on whistleblowing issues.

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