Report No. 179

Chapter VI

Statutory Protection to whistle Blowers in UK, Australia, New Zealand and USA

In this Chapter, we shall refer to the statutory provisions made in the following four countries, United Kingdom, Australia, New Zealand and the United States of America for protection of whistle blowers.

(A) United Kingdom:

(a) Rules or Codes before the the Public Interest Disclosure Protection Act, 1998 came into force; Initially, there were stray provisions or different rules or Codes giving protection to whistle blowers before the Public Interest Disclosure Act, 1998 came into force. We shall refer to them briefly.

The British Airways Code of Conduct tells a public servant that he must:

"be prepared to challenge if you believe that others are acting in an unethical way. Create the climate and opportunities for people to voice genuinely held concerns about behaviors or decisions that they perceived to be unprofessional or inappropriate".

The Code further states as follows:

"do not tolerate any form of retribution against those who do speak up. Protect individual's career and anonymity if necessary". But the above Code, rather contradicted itself in stating that these instructions may stand superseded by any other provisions of the Code relating to confidentiality.

So far as the Government is concerned, the Civil Service Management Code required civil servants, who believed that they were being asked to do something unlawful to report the matter to their senior officers and 'if legal advice confirmed that the action would be likely to be held unlawful, the matter should be reported in writing to the Permanent Head of the Department' (principle 4.1.3 of the Code).

The Code further stated that if a civil servant 'considers that he or she is being asked to act in a manner which appears to him or her to be improper, unethical or in breach of constitutional conventions, or to involve possible misadministration, or to be otherwise inconsistent with standards of conduct prescribed in this memorandum and in the relevant civil service Codes and Guides, the matter should be reported to a senior officer and, if appropriate, to the Permanent Head of the Department' (see Paras 11 and 12). 64

While the Local Government Management Board proposed similar guidelines, quite interestingly, para 72 the Purple Book prohibited officers from communicating to the public the proceedings of any Committee or the contents of any document.

The Audit Commission, in relation to the Local Authorities and the National Health Scheme stated as follows:

"any indication of fraud and the irregularities from whatever source should be followed up forthwith. In addition, the auditor should take note of any evidence which may indicate the possibilities of corrupt practices. Where necessary in public interest, any such evidence should be referred for further investigation by the appropriate authority".

There are similar instructions in the Guidelines on Ethics for members of the Chartered Institute of Public Finance and Accountancy.

It was however unfortunate that nurses in the National Health Scheme were employed upon conditions which contained 'gagging clauses' and these clauses contradicted the 1993 Guidelines issued by the Department of Health. (see 'Whistle blower and Job Security' by David Lewis (1995) vol. 58, Modern Law Review, p. 208).

While the US Occupational Health Services Act, 1976 offered protection to employees who disclosed mal-administration, the UK Health Safety at Work Act, 1974 did not contain any such provision. However, in U.K. the Regulations 12 of the Management of Health and Safety at Work Regulations required employees to report to the 'employers' about safety measures at work places and the persons who so complained were protected from dismissal by Section 57 A (1) (c) and Section 22A (1) (c) of the Employment Protection (Consolidation) Act, 1978.

Initially, there appeared to be no protection to trade union leaders who raised such complaints under the Trade Union and Labour Relation (Consolidation) Act, 1992. However such a protection has now been granted by an amendment of the above said Act and the amendment is contained in the UK Public Interest Disclosure Act, 1998.

The UK Sex Discrimination Act, 1975 and the UK Race Relations Act, 1976 contain provisions supporting whistle blowing. They further make it an offence to divulge information which has been disclosed by an informer if an investigation is being conducted by either the Equal Opportunity Commission or the Commission for Racial Equality. This protection somewhat got diluted by the decision of the Court of Appeal in Aziz v. Trinity Taxis (1988), IRLR 206 holding that the employee against whom 66 action is taken by the employer for making the complaint, had to prove the causal link. Where, however, the employee has taken action under Section 57 of the Employment Protection (Consolidation) Act, 1978, alleging unfair dismissal, now the burden will on the employer.

(b) The UK Public Interest Disclosure Act, 1998: The above Act is the outcome of the Nolan Committee Report, 1995, the White Paper on Freedom of Information 'Your Right to Know' (Cm 3818, Dec., 1997), the Modern Local Government (Cm. 4014, July, 1998) and the Freedom of Speech in National Health Services (letter of the Minister, 1997). The entire movement was spear-headed by 'Public Concerns for Work' consisting of Lord Borrie, Q.C., Right Honourable Lord Oliver of Aylmerton and Others. The Act took into account various disasters including the Bank of Credit and Commerce International collapse where the employee knew about mismanagement within the organization.

The Act of 1998 adds Part IV A (Protected Disclosures) in the Employment Rights Act, 1996 which contains the new sections 43A to 43L, 47B, 48 (1A), amends section 49, and adds section 103A, amends sections 105, 108, 109, 112, 117, 118, adds section 127B amends section 128, 191, 193, 196, 200, 205, 230 and 235. 67

As already stated, the Act also amends the Trade Union and Labour Relations (Consolidation) Act, 1992. The provisions amended are Section 237 and the Order in Council applicable to Northern Ireland.

We shall briefly refer to the salient provisions of the 1998 Act. The Act aims at protecting whistle blowers from victimization and dismissal, where they have made complaints raising genuine concerns about a range of misconduct and malpractice (for a full summary see Halsbury's Statutes, 1999, vol. 1, p. 23 (1)).

The Act covers virtually all employees in the public, private and voluntaries sectors, and certain workers, including agencies, home workers, trainees, contractors, and all professionals in the National Health Service. The usual employment law restrictions on minimum qualifying period and age do not apply. The Act does not cover the army and the police.

The workers who blows the whistle will be protected if the disclosure is made in good faith and is about (i) a criminal act, (ii) a failure to comply with a legal obligation, (iii) a miscarriage of justice, (iv) a danger to health and safety, (v) any damage to the environment. Any attempt to cover up any of these could also be covered by the disclosure.

Under the scheme of the Act, there are three types of disclosure, namely, (i) Internal disclosure, (ii) Regulatory disclosure and (iii) Wider disclosure.

An 'Internal disclosure' to the employer (which may include the manager or director) will be protected if the whistle blower has an honest and reasonable suspicion that the malpractice has occurred, or is occurring or is likely to occur. Where a third party is responsible for the malpractice, the same principle applies to the disclosure made to him. It also applies, where some one in a public body which is subject to appointment by Government (e.g. National Health Service or Quangos), blows the whistle to the sponsoring department.

A 'Regulatory Disclosure' is a disclosure made to a prescribed person. These persons to whom disclosure has to be made are likely to be regulators such as the Health and Safety Executive, the Inland Revenue and the Financial Services Authority. Such disclosures are protected where the whistle blowers pass the test for 'Internal disclosure' and where additionally, they honestly and reasonably believe that the information and allegations are substantially true.

A 'Wider disclosure' is one to the police, the media, Members of Parliament and non-prescribed regulators. These disclosures are protected, 69 if, in addition to the test for 'Regulatory disclosures' they are reasonable in all the circumstances and they are not made for personal gain. The whistle blower must, however, meet other preconditions to win protection for this type of 'Wider disclosure'.

These are that (a) he reasonably believed that he would be victimized if he had raised the matter internally or with a prescribed regulator; (b) there was no prescribed regulator; and he reasonably believed that evidence was likely to the concealed or destroyed; or (c) the concern has already been raised with the employer or a prescribed regulator. These preconditions do not, however, apply if the malpractice is of an extremely serious nature.

In the case of all these three types of disclosures, if the above said conditions are met and the Employment Tribunal is satisfied that the disclosure is reasonable, the whistle blower will be protected. In deciding the reasonableness of the disclosure, the Tribunal will consider all the circumstances, including the identity of the person to whom it is made, the seriousness of the concern, whether the risk or danger remained, and whether the disclosure breached a duty of confidence which the employer owed a third party.

Where the concern had been raised with the employer or the prescribed regulator, the Tribunal will consider the reasonableness of the response. Finally, if the concern had been raised with the employer, the 70 Tribunal will consider whether any whistle blowing procedure within the organization was or should have been used.

Full protection is given to the victi.- Whistle blower upon a claim made by the victim before the Employment Tribunal for compensation. Where the victimization falls short of dismissal, the Act provides that awards will be uncapped and based on losses. Where the whistle blower is an employee and has been sacked, he may, within seven days, seek 'interim relief' so that his employment continues or is deemed to continue, until the full hearing.

As to compensation for unfair dismissal or the termination of a workers contract, the position is that the Government promised to make a regulation under the Act, which will provide that the whistle blower will get compensation in a sum, which will be more than awards for normal unfair dismissal. The compensation is expected to be uncapped.

'Gagging clauses' in employment contract and several agreements are declared void under section 43J of the U.K. Employment Rights Act, 1996 in so far as they conflict with the provisions of the Act. 71

(c) The U K Official Secrets Act, 1989 and the U.K. Public interest Disclosure Act, 1998: Under Section 1 of the U.K. Public Interest Disclosure Act, 1998, as already stated, Part IV of the Employment Rights Act, 1996 has been amended and Sections 43C to 43H have been introduced into that Act. Section 43B refers to disclosure which qualified for protection called 'qualifying disclosure'. It states that the disclosure of information which, in the reasonable belief of the worker, tends to show the following, will be protected, namely:

(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, is being, or is likely to be deliberately concealed. Sub-section (2) of Section 43B states that the relevant failure may occur in UK or outside UK.

Sub-section (3) states that 'where disclosure of information is not a qualifying disclosure if the person making the disclosure commits an offence by making it'. It is here that the Official Secrets Act, 1989 becomes relevant.

Where the disclosure of the information is itself a crime, e.g., it breaches the Official Secrets Act, 1989, the disclosure is not protected. It should be noted that raising such a concern formally within Whitehall or with the Civil Service Commissioner would not constitute a breach of a secrecy offence and so would qualify for protection in any event.

Section 7 of the Official Secrets Act speaks of "authorized disclosures" and states that a disclosure can be said to be made with lawful authority if, and only if, it is made in accordance with his official duty. Sub section (4) thereof prescribes that a disclosure is to be treated as made with lawful authority if, and only if, it is made to a Crown servant for the purposes of his functions as such or in accordance with an official 73 authorization. Sub section (5) defines "official authorization" as one duly given or by a Crown servant.

It was stated in the House of Commons debates on July 28, 1997, that the British Government had no plans to repeal the Official Secrets Act, 1989 nor to introduce a public interest defence (H.C.Deb., vol. 299, col. 6) see 1997 Public Law, p.712.

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