whistleblowing and the economic recession: 10 years of the pida
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Whistleblowing and the Economic Recession: 10 years of the PIDA. Catherine Hobby, School of Law, University of East London. Protection from Disclosure Act 1998. - PowerPoint PPT PresentationTRANSCRIPT
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) a criminal offence (b) failure to comply with a legal obligation (c) a miscarriage of justice (d) health or safety (e) environment, (f) 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 externallyYouGov 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