28 April 2016
The Public Interest Disclosure Act 1998 (“PIDA“) provides protection to workers who make qualifying protective disclosures (or “blow the whistle”). If a worker who has made a protected disclosure has been subjected to a detriment in their employment, or has been dismissed, because they have made a protected disclosure they are able to bring a claim complaining about such detriment and/or an automatic unfair dismissal claim against their employer in the Employment Tribunal.
PIDA came into being in the wake of the Zebrugge ferry disaster and Piper Alpha explosion. In the interests of public policy, a key aim of the legislation was to encourage workers to come forward to report serious wrongdoing on the part of their employers, or to report risks to health and safety, without fear of reprisal or fear that they that they would be dismissed for raising legitimate concerns. In doing so, it was hoped that malpractice could be identified and dealt with and that similar future disasters could be averted.
What is a protected disclosure?
PIDA operates to make it unlawful for a worker to be subjected to a detriment in employment, or to be dismissed, because the worker has made a qualifying protected disclosure. A qualifying disclosure is a disclosure of information which, in the reasonable belief of the worker making it, tends to show that malpractice has taken place (or is likely to take place). The type of malpractice which can be the subject of a protected disclosure covers a fairly wide range of potential wrongdoing and specifically includes criminal offences; breaches of a legal obligation; miscarriages of justice; danger to the health and safety of any individual; damage to the environment; or the deliberate concealing of any information about any of these categories of malpractice.
Development of “private interest” whistle-blowing
As “whistle-blowing” case law has developed, the scope and original aim of PIDA gradually evolved to be used in cases where a worker made a complaint relating more to private or individual interests than wider health and safety or malpractice concerns. In particular, employees began to argue that making a complaint about a breach of their own employment contract, or their treatment by their employer, amounted to a complaint regarding breach of a legal obligation and could therefore constitute a qualifying protected disclosure.
This trend began with Parkins v Sodexho  IRLR 109 in which the Employment Appeal Tribunal (“EAT“) held that a complaint about a breach of the worker’s own contract of employment could constitute a qualifying protected disclosure. The Parkins decision widened the scope of whistle-blowing claims for workers, and was followed by similar cases. Subsequent cases found that a complaint concerning a failure to deal with race discrimination; reporting an alleged failure to follow an equal opportunities policy; and complaining that an employer had refused to honour the pay rates promised at a job interview, all constituted qualifying protected disclosures.
Introduction of public interest test in 2013
The development of this line of case law gave rise to concerns that the whistle-blowing protection regime was being broadened unnecessarily, and had moved beyond the original spirit and intention of the legislation. There were concerns that the Parkins line of cases provided an opportunity for workers who suspected they were about to be dismissed (or who were considering resigning) to make “tactical disclosures” to link any subsequent action on behalf of their employer to their complaint, particularly where a disgruntled employee did not have sufficient length of service to qualify for ordinary unfair dismissal rights (which only apply after two years’ service).
Accordingly, from 20 June 2013 onwards PIDA was amended to the effect that protected disclosures must be in the public interest. It was intended that this condition would prevent employees making complaints about their own employment contract as this type of disclosure would not generally be held to be of wider public interest.
Developments in the public interest test since 2013
To date, the key case on the public interest test under the PIDA regime is Chesterton Global Limited and Another v Murmohamed [UK EAT/U335/14]. In this case, a senior manager had complained about his employer allegedly manipulating the company’s finances and accounts, which he believed had had a negative impact on the commission that he and other senior managers had received. The EAT acknowledged that the intention of the 2013 amendment was to prevent complaint about an individual’s own employment constituting a qualifying protected disclosure. However, in this case, whilst the individual was primarily concerned with the impact on his own commission, his disclosure about manipulation of accounts and its impact on commission also affected around 100 other senior managers, and was not therefore of purely private interest, and did constitute a qualifying protected disclosure. The EAT held that it was not necessary that the disclosure has to be of interest to the public as a whole, and considered that in almost all cases only a particular section of the public could be said to be “interested” in any type of disclosure. The decision, which arguably widens the scope of protected disclosures beyond the intentions of the 2013 amendment, has been appealed and is due to be heard by the Court of Appeal in October 2016.
Since Chesterton, further cases have indicated that the public interest test does not necessarily mean that it is no longer possible to make a protected disclosure linked to an individual’s terms and conditions of employment or own interests at work. In Underwood v Wincanton Plc [UK EAT/0163/15] the employee had complained about unfair allocation of overtime. The Employment Tribunal originally rejected the contention that this was a qualifying protected disclosure (as it related to private interest regarding working conditions). The EAT overturned this, again noting that a disclosure may still meet the public interest test even if it is only potentially in the public interest of a sub-set or specific category of the public. It also noted that a complaint relating to terms and conditions of employment could still be in the public interest in certain circumstances and should not automatically be assumed to be of private interest only.
This perhaps reflects the view of some commentators at the time of the introduction of the public interest test as to whether it would make a material difference to the type of cases that were typically seen before the Employment Tribunal. On one view, it could be said that upholding contractual relations voluntarily entered into by parties (including employment contracts) is in the public interest of ensuring that parties comply with their legal obligations. It will be interesting to see the approach the Court of Appeal takes in the forthcoming Chesterton appeal, and the impact this may have on subsequent claims in this area.