Whistleblowing.

The Public Interest Disclosure Act 1998 (or Whistleblowers' Act as it is commonly referred to) introduces specific statutory protection against victimisation and dismissal for those employees who "blow the whistle" on their employers for wrongdoing at work. It does this by amending the Employment Rights Act 1996.

What Protection Does the Act Give?

The Act aims to promote greater openness between employers and staff in dealing responsibly with wrong doing that arises in the workplace. It does not, however, introduce a general right for all whistleblowers to receive special protection and only those categories of information defined in the Act as "qualifying disclosures" are protected. These categories are, nonetheless, very wide and include:

• criminal offences
• failure to comply with legal obligations
• miscarriages of justice
• health and safety dangers
• damage to the environment
• the concealment of information about any of these matters.

The intention behind the Act goes further than merely preventing public transport or health service disasters.

The Act is equally applicable to the private sector, the financial world in particular, and it will be relatively easy for an employee to make a protected disclosure. Although the title of the Act refers to "public interest" there is no requirement that disclosure themselves must be (or be claimed to be) in the public interest.

An employee need only show that he or she has a "reasonable belief" that the employer has committed one of the qualifying offences.

The employee will then be protected in making a disclosure if it is made in good faith to his or her employer or to one of a limited category of persons, eg a government minister or an appropriate regulatory authority. See the Public Interest Disclosure (Prescribed Persons) Order 1999 for a list of specified organisations.

The Act stipulates that an employee should in the first instance, raise concerns with his or her employer or the appropriate regulatory authority, eg the Health and Safety Executive. In other cases, where disclosures are made in the wider public domain, eg to the press, more stringent conditions apply.

Here a disclosure attracts protection only where an employee satisfies the precondition that he or she has previously disclosed the matter to the employer or a prescribed body (or can show that he or she has not done so because of a reasonable belief that he or she would be victimised or that disclosure would lead to evidence being concealed or destroyed). He or she must also:

• make the disclosure in good faith
• reasonably believe that the information is substantially true
• not act for personal gain
• act reasonably.

The Act sets out a number of factors to be considered by a tribunal in deciding whether an employee acted reasonably in making the disclosure through external channels. These include:

• the seriousness of the failure complained of
• whether the disclosure breaches the duty of confidentiality between the employer and another person
• whether the disclosure was made in accordance with any internal procedures approved by the employer.

In the cases of an "exceptionally serious failure" an external disclosure will be protected without an employee having to satisfy the precondition of prior notification to his or her employer required for other external disclosures.

It is not possible for either an employee or an employer to contract out of the Act and any agreement to that effect is void to the extent that it restricts the making of protected disclosures.

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