PIDA News
On this page we try and keep readers up-to-date with significant PIDA decisions and developments. We recommend that the material here is read with the practical guide and information in the section on the Law.
Reality check - no need for legal perfection
The Court of Appeal has ruled in Babula v Waltham Forest College that it is not necessary for a whistleblower to get his law right before PIDA protection kicks in. The Court overturned the 2004 decision of the EAT in Kraus v Penna, pointing out that the evidential test in section 43B is that the whistleblower “reasonably believes the information tends to show [the malpractice].”
Is PIDA like discrimination law?
The Court of Appeal is looking again at whether and how far whistleblowing legislation should be treated like discrimintaion law. Last year the EATdecided in Kuzel v Roche Products that the burden of proof rules in the discrimination approach should not be followed in PIDA. This EAT decision means that it is open to a tribunal to find that whistleblowing was not the reason for the dismissal though the employer cannot say or show what was the genuine reason. As the employer will know and be able to explain its reason for dismissing the whistleblower, the decision risks protracting cases and encouraging an unscrupulous employer or lawyer to play mind games. While there are some significant differences between PIDA and discrimination law, the Court of Appeal has previously ruled that (see, for example, Woodward and Melia below and Ezias v N. Glamorgan NHS Trust) that PIDA should where possible be approached by the courts like a discrimination case. This encourages the parties and the courts to see PIDA cases not just as a private dispute between the parties but to consider whether the effect of the decision will make it more or less likely that whistleblowing concerns are raised and addressed constructively.
Whistleblower’s misconduct
In December 2006, the Court of Appeal in Bolton School v Evans confirmed a decision of the EAT that PIDA protection applies only to the whistleblowing and not to the whistleblower’s wrongful acts (in this case computer hacking) to prove the concern was valid. The Court supported the approach of the EAT that PIDA protects whistleblowers who reasonably believe the information tends to show something is wrong, not those who engage in unlawful activity and investigate the matter to establish that it is in fact wrong. In practical terms the effect of the decision is that an internal whistleblower should consider an external disclosure either to a regulator (under S43F) or wider (under s 43G) as alternatives to pursuing or proving the matter internally.
Media Leak
In Collins v The National Trust, an employment tribunal ruled that that leak to a local newspaper of a confidential report about dangers on a public beach was protected.
Statistics to 2007 for PIDA applications and their outcomes
This table includes the annual statistics since the introduction of the Act.
Ombudsman castigates DTI over whistleblowing secrecy
A report from the Parliamentary Ombudsman has strongly criticised the Department of Trade and Industry (DTI, now renamed the Department for Business, Enterprise and Regulatory Reform) for the “inherently misleading” way it introduced new rules that prevent the public learning about whistleblowing concerns raised under PIDA. As a result the DTI paid this charity £130,000 for misleading us and wasting our time.
Post-employment victimisation
In a landmark decision, the Court of Appeal has ruled in Woodward v Abbey National that PIDA protection applies to post-employment victimisation. This is intended to discourage employers from trying to make things difficult for a whistleblower after he has left by denying him a reference. The decision restates that PIDA should be viewed as anti-discrimination legislation.
Compensation for detriment
In the Court of Appeal of Melia v Magna Kansei, Adrian Melia represented himself and won his case that he should be compensated for the distress suffered and legal costs incurred until the date he resigned following his victimisation for whistleblowing.
Do it yourself
In the EAT, Julian Dobson successfully defended his wife's PIDA victory against the novel argument that even though she had been acting in good faith when she reported child abuse, she should lose as the employer had not believed her good faith at the time it dismissed her. For the EAT decision, click here.
“Good Faith” in PIDA
There have been decisions from the Court of Appeal and EAT on the meaning of ‘good faith’ in the Public Interest Disclosure Act.
Whistleblowing and the freedom to report
The High Court has ruled that a BBC broadcast, prompted by a whistleblower’s disclosure, that criticised senior managers at an NHS Trust for manipulating waiting lists was true in substance and not libellous - Henry v BBC. For an article in Guardian Media on the case click here.
Decisions of the EAT
The Employment Appeal Tribunals publishes its key decisions. By following this link and selecting ‘Public Interest Disclosure’ in the topic section you will find copies of decisions of the EAT on PIDA.
Whistleblowing Case Summaries: Notable Decisions under PIDA
Culled from an extensive review of 1200 Public Interest Disclosure Act claims, this 2003 paper contains summaries of over 70 notable legal decisions, 7 of which are from the appeal courts.
Shipman Inquiry proposals
Following from its examination of whistleblowing in the case of Dr Harold Shipman and generally within the NHS, the Shipman Inquiry has suggested changes to PIDA. In particular, the Inquiry made suggestions on the meaning of “good faith”, the requirement to demonstrate “reasonable belief” and the nature of making a disclosure in a small workplace (such as a GP practice). The Shipman Inquiry's suggestions can be viewed by clicking here. PCaW's submissions to the Inquiry and our press release on its recommendations can be viewed here.
HMG - whistleblowing is about culture
The Minister for the Cabinet Office confirmed in 2005 that the Government views whistleblowing and PIDA as about organisational culture and good governance rather than employment law. The full text of the House of Commons debate can also be viewed on the House of Commons website here.
Interesting historic ET decisions
As to early employment tribunal decisions, the 2000 case of Fernandes vs Netcom Consultants and the 2003 case of Ian Perkin v St George's NHS Trust may be of interest to researchers. See also the article Whistleblowing: The early view from the tribunals.
