Mrs F M Street -v- Derbyshire Unemployed Workers’ Centre
Miss Sanderson
Case Manager
Court of Appeal
Royal Courts of Justice
The Strand
London WC2A 2LL
9 March 2004
Listed for 18 March 2004
Case ref A1/2003/2160
On appeal from the Employment Appeal Tribunal (ref EAT/0508/02/ZT)
Further to our telephone conversation this morning, I am writing to ask if you would kindly place in the court papers for the above case this letter and the attached submission on the meaning of ‘in good faith’ in the Public Interest Disclosure Act 1998.
We make this submission as an interested party and wish to stress that we do not seek to influence how the Court will decide this case on its merits. Our concern is simply that the scheme and purposes of the Public Interest Disclosure Act 1998 will be undermined if the Court were to endorse the approach of the Employment Appeal Tribunal (EAT) that the advancement of a grudge or personal antagonism vitiates good faith and is a bar to the protection of the 1998 Act.
For these reasons, and though we are copying this submission to Counsel for the parties, we thought it appropriate to send a copy direct to the Court. While we do not make this submission for or on behalf of either party, it is important that the Court and Counsel know that the appellant did contact our helpline three years ago and that we have not had sight of the decision of the Employment Tribunal. The points we wish to make relate to the correct construction of the requirement that disclosures be made “in good faith” in the 1998 Act and our understanding is that some or all of the points we make were not advanced before the EAT.
We turn now to the role and work of Public Concern at Work as we accept we should first demonstrate a sufficient interest if the Court is to consider our submission.
Public Concern at Work is an independent charity and a legal advice centre. We are popularly known as “the whistleblowing charity”. In the first Court of Appeal decision to consider the Public Interest Disclosure Act, ALM Medical Services v Bladon (2002) IRLR 807 at p. 807, Lord Justice Mummery, giving the judgement of the court, referred to our role and work -
“There are obvious tensions, public and private, between the legitimate interest in the confidentiality of the employer’s affairs and in the exposure of wrong. The enactment, implementation and application of the “whistleblowing” measures and the need for properly thought out policies in the workplace, have over the last three years, received considerable publicity from various quarters, including the valuable activities of an independent charity, Public Concern at Work, established in 1993 and experienced in providing assistance to both employers and employees.”
As to the assistance we provide employees, this is free independent legal advice and assistance on whether and how to blow the whistle on workplace wrongdoing. We do not, however, litigate or go on the record on behalf of employees. The Confederation of British Industry, the Financial Services Authority, the Institute of Directors and the Trades Unions Congress have all publicly praised this service. Employers across the NHS, central and local government and the private sector promote our helpline to their own staff (and some make a nominal contribution toward its costs). We also provide training and guidance to employers, unions and regulators on whistleblowing systems and policies (but not on individual cases) and on organisational culture. We now generate over half of our income from earnings and subscriptions, the balance coming from charitable grants and donations.
We also seek to inform and influence public policy on accountability and governance. The Nolan Committee and others have endorsed our approach, leading the Conservative Government to describe us in its White Paper on The Governance of Public Bodies (Cm 3556 Feb 1997, page 44) as ‘the leading organisation in this field’. As an example of this policy work, we were approached by MPs in 1995 to draft whistleblowing legislation. In 1997 Mr Richard Shepherd MP asked us to prepare for him and promote his private member’s Bill on Public Interest Disclosure. At the request of Mr Shepherd and the Labour Government we conducted the public consultation on the proposals and advised on the scope and detail of the Bill. Lord Borrie QC, who had been our founding chairman, promoted the Bill through the Upper House and it was enacted as the Public Interest Disclosure Act 1998.
We monitor the way the 1998 Act operates in the workplace and try to find out how it impacts on accountability, self-regulation and regulation and whether it does contribute to the public interest.
If, having considered the above, the Court considers that it is in its interest, that of the parties and the law that our submission should be entertained, we hope that the Court finds it of assistance. Should the Court wish us to clarify or amplify this submission, we will be happy to provide such further assistance as we can.
Finally we apologise that we have not written earlier but we only became aware of the EAT’s decision last month and of the imminence of this appeal on 28 February.
I attach three copies of this letter for your convenience.
Yours sincerely,
Guy Dehn
Director / barrister
Cc Counsel for the Appellant & Respondent
IN THE COURT OF APPEAL
Case ref A1/2003/2160
Mrs F M Street
-v-
Derbyshire Unemployed
Workers’ Centre
SUBMISSION
from Public Concern at Work
on the meaning of
“in good faith”
in the Public Interest Disclosure Act 1998
Summary
1 The purpose of this intervention is to put before the Court the submission of Public Concern at Work, an independent whistleblowing charity, on the meaning of “in good faith” in the Public Interest Disclosure Act 1998. We do not make it on behalf of either party but in response to the decision of the EAT that the promotion of a grudge or advancement of personal antagonism is ‘inimical to the public interest’ and a bar to protection under the Public Interest Disclosure Act. Irrespective of how the Court decides this appeal on its merits, we submit that
- this is an incorrect construction of the requirement that the disclosure be made “in good faith” in the Public Interest Disclosure Act, and
- this approach will seriously damage the protection, scheme and purposes of the Act.
2 In considering this issue, we submit it is relevant that the Court take account of the general application of the Act in the workplace. The Public Interest Disclosure Act covers more of the workforce than other employment legislation, has no cap on compensation and also provides protection against pre-dismissal reprisals. While there are some 100,000 employment tribunal claims registered a year, less than 700 of these are under the Public Interest Disclosure Act. The Act is one of the few pieces of employment legislation enacted in the past twenty years that has not been criticised by employers’ bodies or unions.
3 For the reasons set out on pages 2-4 below, we submit that “makes the disclosure in good faith” in the Public Interest Disclosure Act means “makes the disclosure honestly”.
4 For the reasons set out on page 5 below, we submit that a finding whether this requirement is satisfied is essentially a finding of fact. In making such a finding, we submit account can properly be taken of evidence both before and after the disclosure is made.
Construing ‘in good faith’ in the Public Interest Disclosure Act 1998
5 We submit that the provision requiring that a protected disclosure be made “in good faith” in the Public Interest Disclosure Act means that
the disclosure is made honestly, even though made negligently or without due care.
6 Where the worker making the disclosure has mixed motives, we submit that the good faith requirement is satisfied where the disclosure is made honestly and one of the motives is so that the relevant failure can be addressed and, where appropriate, acted on.
7 If the Court decides, contrary to our primary submission, that there may be circumstances where an ulterior motive can vitiate the requirement of good faith even where the disclosure is made honestly, we submit that these circumstances can only ever be where that motive is
- a wicked or malicious one that approaches dishonesty, and also
- the predominant motive for that disclosure.
Statutory definitions of “in good faith”
8 The term is used in section 61(3) of the Sale of Goods Act 1979 and section 90 of the Bills of Exchange Act 1882. In both cases Parliament defined the term as follows:
“A thing is deemed to be done in good faith within the meaning of this Act when it is in fact done honestly, whether it is done negligently or not.”
The purposes of the Public Interest Disclosure Act
9 The long title of the 1998 Act is
“to protect individuals who make certain disclosures of information in the public interest; to allow such individuals to bring action in respect of victimisation; and for connected purposes”
10 The practical difficulty posed by any suggestion that a grudge or personal animosity or other motive is a bar to protection is that it will cause a worker to realise that he may lose protection if an ulterior motive can be ascribed to him. This, contrary to the whole purpose of the Public Interest Disclosure Act, will discourage an honest worker from raising a concern in the first place.
11 This is no slight risk as an employer will be able to allege a grudge, personal antagonism or other ulterior motive wherever there is some evidence that it might exist. This can only encourage employers to seek some such evidence. Because a claim can only be brought under the Public Interest Disclosure Act once the worker has been victimised, it will not be hard for the employer to find some such evidence that the worker had or has a grudge or feels some personal antagonism.
12 Additionally, as this approach will encourage the employer to focus on the messenger rather than on the message, when a concern is raised this will thwart the second purpose of the Act which is to encourage employers to address and where appropriate remove or reduce the risk arising from the relevant failure.
Motive and the public interest
13 We submit the EAT was also wrong to state that the advancement of a grudge is “inimical” to the public interest in the context of public interest disclosures. The correct approach, we submit, is that set out in In Re A Company (1989) 3WLR 265 which dealt with the position at common law. There, at p 269f, Mr Justice Scott as he then was stated:
“It may be the case that the information proposed to be given, the allegations to be made by the defendant to FIMBRA, and for that matter by the defendant to the Inland Revenue, are allegations made out of malice and based upon fiction or invention. But if that is so, then I ask myself what harm will be done. FIMBRA may decide that the allegations are not worth investigating. In that case no harm will have been done. Or FIMBRA may decide that an investigation is necessary. In that case, if the allegations turn out to be baseless, nothing will follow from the investigation. And if harm is caused by the investigation itself, it is harm implicit in the regulatory role of FIMBRA.”
14 Toulson and Phipps in Confidentiality 1 confirm that the underlying approach the common law takes to public interest disclosures is that motive is generally irrelevant:
“Informant’s motives
The informant’s motives were also considered irrelevant in British Steel Corporation v Granada Ltd by Lord Fraser, with whom Lord Russell agreed, and semble, by Viscount Dilhorne, although Lord Salmon in his dissenting speech took a different view.”
The scheme of the Public Interest Disclosure Act
15 The Act has a tiered disclosure regime to encourage employees to raise concerns about malpractice and employers to address them properly. Whistleblowing to the employer is readily protected under sections 43B and 43C (the worker reasonably believes the information tends to show one or more of the relevant failures specified in section 43B(1) and makes the disclosure in good faith).
16 The next tier of protected disclosure is to a regulator prescribed under section 43F. While there is no requirement that the worker should first have raised the concern internally, this is encouraged wherever possible because at this second tier the worker has to make the disclosure in good faith and additionally reasonably believe the information and any allegation contained in it are substantially true.
17 The final tier of protected wider disclosure (which can include the media) is under sections 43G and H and here, further, the particular disclosure must be held to be reasonable in all the circumstances and the worker must meet one of several preconditions ([i] that the concern had been raised internally or with a prescribed regulator, [ii] the concern had not been raised either internally or with a prescribed regulator because of the worker’s reasonable fear of reprisal, [iii] there was no prescribed regulator and the worker reasonably believed the relevant failure would be concealed, or [iv] that the concern was exceptionally serious).
18 Moreover one explicit and additional requirement for a wider disclosure to be protected under sections 43G and H is that the worker (per subsections (1)(c) in sections 43G and 43H)
“does not make the disclosure for purposes of personal gain”
This is the first reference in the Public Interest Disclosure Act to motive and would be otiose if “in good faith” itself covered the motive of the worker.
19 The Act does not require the worker to blow the whistle tier by tier and it is clear from the legislation that a regulatory disclosure can be protected whether or not an internal one had already been made, and that a wider disclosure can still be protected whether or not an internal or regulatory one had already been made. However, the additional requirements which the worker must satisfy to secure protection at each respective tier make it clear that the legislation seeks to guide the worker to blow the whistle internally first where possible.
20 As the good faith test applies to the making of the disclosure at each tier, we submit that the correct meaning of the term in the context of the scheme and the long title is that the disclosure at whichever tier it is made is made honestly. If the requirement of good faith were to be vitiated by a motive such as the promotion of a grudge or the advancement of personal antagonism, the disclosure scheme in and purposes of the Act would be undermined because it would be easy for the employer to assert that a subsequent disclosure was not made in good faith because the worker had a grudge or felt antagonistic about the response to any previous internal disclosure of that concern.
The analogy in discrimination law
21 In paragraph 22 of its judgement, the EAT appears to misquote the editors of Harvey on Industrial Relations and Employment Law when they consider the analogous test 2 in discrimination law. Referring to Harvey at L.210, the judgement states (with our emphases added) that
“in the anti-discrimination field a succinct solution is as follows
‘That means you cannot therefore spitefully tell the truth about me
or
honestly tell untruths about me. I must not in either case victimise you’.”
22 In the current edition (issue no 162) of Harvey the sentence in L.210 reads
‘That means that you can therefore spitefully tell the truth about me
or
honestly tell untruths about me. I must not in either case victimise you’.
The additional ‘not’ in the extract in the judgement - whether due to an error in an earlier edition of Harvey or not - inverts its meaning.
The meaning of the term when it is used elsewhere in employment legislation
23 Apart from the provisions inserted by the Public Interest Disclosure Act, the “good faith” requirement also appears in the protection under section 104 of the Employment Rights Act 1996 for workers who assert that the employer is infringing one of their statutory rights. If good faith here was vitiated by the advancement of a grudge or the promotion of personal antagonism, it is difficult to see how the statutory protection in section 104 could ever be invoked successfully. This is because the employer would always be able to say that the employee making the assertion was advancing a grudge that his statutory right was being infringed.
The legislative history
24 Should the Court wish to have a submission on the legislative history of the 1998 Act and on whether there are any statements of the promoters or of ministers that are relevant and/or that are admissible under the rule in Pepper v Hart, we will be happy to provide a submission.
Whether post-disclosure evidence can be used to assess whether the disclosure was made in good faith
25 In our submission, the EAT was correct to hold that the tribunal can ‘look forwards and backwards’ (para 28) when considering whether any particular disclosure was made in good faith as this is essentially a finding of fact. This, we submit, should be the case whether or not the Court upholds the EAT’s finding as to the meaning of “in good faith” or whether it decides that the term means “honestly” as we submit above.
March 2004
Guy Dehn
Director / Barrister
Public Concern at Work
Suite 306
16 Baldwins Gardens
London EC1N 7RJ
Tel 020 7404 6609
gd@pcaw.co.uk
- Sweet & Maxwell, 1996, page 85, para 6-18
- The terms and effect of section 4(2) of the Sex Discrimination Act 1975 are to bar protection where the allegation was false and not made in good faith.