Public Interest Disclosure Act 1998 - Act

Act

Section 1 of the Act inserts sections 43A to L into the Employment Rights Act 1996, titled "Protected Disclosures". It provides that a disclosure which the whistleblower makes to their employer, a "prescribed person", in the course of seeking legal advice, Ministers of the Crown, individuals appointed by the Secretary of State for this purpose, or, in limited circumstances, "any other person", is protected. In addition, the disclosure must be one which the whistleblower "reasonably believes" shows a criminal offence, a failure to comply with legal obligations, a miscarriage of justice, danger to the health and safety of employees, damage to the environment, or the hiding of information which would show any of the above actions. These disclosures do not have to be of confidential information, and this section does not abolish the public interest defence; in addition, it can be the disclosure of information about actions which have already occurred, are occurring, or could occur in the future. In Miklaszewicz v Stolt Offshore Ltd, the Employment Appeal Tribunal confirmed that the disclosure does not have to have been made after the Act came into force; it is sufficient for the dismissal or other persecution by the employer to have happened after that time.

The list of "prescribed persons" is found in the Public Interest Disclosure (Prescribed Persons) Order 1999, and includes only official bodies; the Health and Safety Executive, the Data Protection Registrar, the Certification Officer, the Environment Agency and the Secretary of State for Trade and Industry. An employee will be protected if he "makes a disclosure in good faith" to one of these people, and "reasonably believes that the relevant failure...is a matter in respect of which the person is prescribed and the information is substantially true". Other prescribed persons include the Scottish Environment Protection Agency, in relation to "acts or omissions which have an actual or potential effect on the environment...including those relating to pollution".

If an employee does make such a disclosure, Section 2 inserts a new Section 47B, providing that the employee shall suffer no detriment in their employment as a result. This includes both negative actions and the absence of action, and as such covers discipline, dismissal, or failing to gain a pay rise or access to facilities which would otherwise have been provided. If an employee does suffer a detriment, he is permitted to make a complaint before an employment tribunal under Section 3. In front of an employment tribunal, the law is amended in Sections 4 and 5 to provide compensation, and to reverse the burden of proof; if an employee has been dismissed for making a protected disclosure, this dismissal is automatically considered unfair. Similarly, under Section 6, an employee cannot be given priority when discussing redundancies simply because he made such a disclosure. These sections take into account Section 7, which notes that there is no requirement of age or length of employment before they come into effect.

Under Section 8, the Secretary of State could pass a statutory instrument setting out the rules and limits surrounding compensation for the employee's dismissal after making a protected disclosure; until this is done, Section 9 provided interim remedies, which were the same as in other cases of unfair dismissal. The Secretary of State did pass such an instrument, the Public Interest Disclosure (Compensation) Regulations 1999, but Section 8 has now been repealed under Section 44 of the Employment Relations Act 1999. Under Section 10, the Act applies to crown servants, excepting under Section 11, those who are employees of MI5, MI6 or GCHQ. The Act does exclude, in Sections 12 and 13, serving police officers and those employed outside the United Kingdom.