|Public Interest Disclosure Bill
| ||EXPLANATORY MEMORANDUM|
| || The Bill would protect workers who disclose information about certain types of matters from being dismissed or penalised by their employers as a result. It applies to disclosures relating to crimes, breaches of a legal obligation, miscarriages of justice, dangers to health and safety or the environment and to the concealing of evidence relating to any of these.|
| || To qualify for protection, the worker making the disclosure must be acting in good faith throughout, and must have reasonable grounds for believing that the information disclosed indicates the existence of one of the above problems. Disclosures are protected if they are made to the employer or other person responsible for the matter; to a Minister of the Crown, in relation to certain public bodies; to a regulatory body designated for the purpose by order and for the purpose of seeking legal advice. Other disclosures may be protected where in the particular circumstances they are reasonable. Special provision is made for disclosures relating to exceptionally serious problems.|
| || A worker who is dismissed or penalised as a result of making a protected disclosure will be entitled to complain to an industrial tribunal which may award him compensation or make a re-employment order. The levels of compensation on dismissal are to be determined by regulations.|
| || The Bill amends the Employment Rights Act 1996 to protect workers who disclose certain kinds of information from being dismissed or penalised as a result of the disclosure.|
| || Clause 1 inserts new sections 43A to 43L into the Employment Rights Act 1996. Sections 43A and 43B define certain terms and set out the matters about which protected disclosures may be made. Sections 43C to 43F deal with disclosures to specified persons. Section 43G deals with disclosures to persons other than those specified. Sections 43H deals with disclosures of exceptionally serious matters. Sections 43J to 43L contain related provisions.|
Section 43A (Meaning of "protected disclosure") introduces the term "protected disclosure".
Section 43B (Disclosures qualifying for protection) provides that, for a disclosure to qualify for protection, the worker making it must reasonably believe that the information tends to show that one or more of the following has occurred, is occurring or is likely to occur: (a) a criminal offence; (b) a failure to comply with any legal obligation (this includes any breach of a statutory requirement, or a requirement under common law or administrative law); (c) a miscarriage of justice; (d) danger to the health or safety of any individual; (e) damage to the environment; or (f) deliberate concealment of any of the above.
Two conditions must be met for a disclosure to be protected under the Bill. First, the worker must "reasonably believe" that one of the above matters is involved. Whether the belief was reasonable is an objective test, which requires that in the circumstances there were reasonable grounds for it. Whether such grounds existed will if necessary be determined by the industrial tribunal. Second, disclosures must be made "in good faith".
Except in the case of a disclosure for the purpose of seeking legal advice under section 43D (where the good faith test does not apply) a disclosure which does not meet both of these tests cannot be protected under the Bill.
A disclosure may be protected where it relates to a matter occurring outside the UK or where any offence or breach of a legal requirement involves the laws of another country [section 43B(2)].
In the case of a health and safety or environmental hazard, a disclosure is only protected if it indicates a greater danger than is associated with the normal use of the process or product, or a danger not normally associated with it [section 43B(3)].
A disclosure is not protected if it involves the committing of an offence [section 43B(4)], for example under the Official Secrets Act.
Section 43C (Disclosure to employer or other responsible person) provides that a disclosure which a worker makes to his employer is protected. So is a disclosure to a third party under a procedure established by the employer which the worker is authorised to use.
Where the matter causing concern is the responsibility of someone other than the employer, a disclosure to that person is protected.
Section 43D (Disclosure to a legal adviser) provides that a disclosure to a lawyer in the course of obtaining legal advice is protected. However, if a lawyer discloses information supplied to him in the course of obtaining legal advice that disclosure is not protected [section 43B(5)].
Section 43E (Disclosure to Minister of the Crown) provides that where the worker's employer is an individual appointed by a Minister or board to which a Minister makes at least one appointment, a disclosure to a Minister is protected.
As well as the preconditions previously described [good faith, and reasonable belief that one of the specified kinds of problems is involved] two further preconditions apply to the disclosures referred to below. These are that the worker is not disclosing the information for personal gain, and that he reasonably believes that the information and any allegation contained in it are substantially true. The disclosures referred to in the following three sections (43F, 43G and 43H) are protected only if these additional conditions are met.
Section 43F (Disclosure to prescribed person) provides that disclosures to a body prescribed by an order made by the Secretary of State will be protected. The provision is intended to permit the Secretary of State to designate particular regulatory authorities as bodies to whom protected disclosures relating to their responsibilities can be made.
The Bill provides that disclosures to persons other than those identified in the above provisions will be protected in certain circumstances. In general, it is envisaged that the matter will first have been raised with the employer or a prescribed regulatory body. However it is recognised that in limited circumstances it may not be reasonable to require a worker to so.
Section 43G (Disclosure in other cases) provides that a disclosure other than one described above will be protected if in all the circumstances it is reasonable and one of the following conditions has been met: the worker has previously raised the matter with his employer or with a prescribed body; or the worker has not done so because he reasonably believes (a) that he would be penalised if he did; or (b) that evidence would be concealed or destroyed if he did and no relevant regulatory body, to whom he can express his concerns, has been prescribed.
There must be reasonable grounds for the worker to believe that he will be penalised or evidence will be destroyed an unsupported suspicion would not be sufficient.
In any of these cases, the disclosure will only be protected if, in all the circumstances, it was a reasonable one to have made. The factors of which particular note will be taken in deciding its reasonableness are: the identity of the person to whom it was made; the seriousness of the problem; whether it is continuing or likely to recur.
Where there are no reasonable grounds for the worker to fear that raising the matter with the employer or a prescribed regulatory body would expose him to penalties or provoke the destruction of evidence, particular note would also be taken of whether the worker has complied with any whistleblowing procedure authorised by his employer for reporting such concerns and of any action that the employer or regulatory body has taken or might reasonably be believed to have taken since the matter was reported to them.
Section 43H (Disclosure of exceptionally serious failure) provides that where a problem is "exceptionally serious" a disclosure will be protected whether or not it has first been raised with the employer or a prescribed regulatory body.
Section 43J (Contractual duties of confidentiality) provides that any term of a contract which attempts to prevent a worker making a disclosure in accordance with the provisions of this Bill will be void.
Section 43K (Certain individuals to be treated as workers for the purposes of Part IVA) defines certain terms, including the term "worker". The definition is based on, but wider than, the definition of the term in section 230(3) of the Employment Rights Act 1996. The definition in the Bill also applies to: (a) certain kinds of agency workers; (b) homeworkers; (c) NHS doctors, dentists, ophthalmologists and pharmacists; and (d) trainees on vocational or work experience schemes.
Section 43L (Other interpretative provisions) defines certain terms.
| || Clause 2 inserts a new section 47A into the Employment Rights Act (ERA), establishing that it is a worker's right not to be penalised by his employer (ie subject to a "detriment") for making a protected disclosure.|
| || Clause 3 amends section 48 of the ERA to permit a worker to complain to an industrial tribunal that he has been penalised for making a protected disclosure.|
| || Clause 4 provides that where the penalty falls short of dismissal, the provisions of section 49 of the ERA will apply. These provide that compensation is awarded for any loss that the complainant has suffered, where this is just and equitable.|
| || Where the complainant is an employee who has been dismissed, compensation is awarded under the provisions of clause 8 below. Where the contract of a worker who is not an employee is terminated, the compensation awarded under section 49 of the ERA cannot exceed any maximum sum available to an employee who is dismissed. Re-employment orders are not available for such workers.|
| || Clause 5 inserts a new section 103A into the ERA, establishing that an employee who is dismissed for making a protected disclosure is unfairly dismissed.|
| || Clause 6 inserts a new subsection 105(6A) into the ERA providing that an employee who is selected for redundancy for making a protected disclosure is unfairly dismissed.|
| || Clause 7 amends sections 108 and 109 of the ERA to provide that workers are protected under this Bill even if they have have been employed for less than two years, or have reached retirement age. Such workers are not normally protected from unfair dismissal.|
| || Clause 8 provides that compensation for employees who have been dismissed for making a protected disclosure will be determined by regulations.|
| || Clause 9 extends the ERA's provisions for interim relief to employees making protected disclosures. If the employee seeks interim relief within 7 days and the tribunal considers it likely that it will find that he was dismissed for making a protected disclosure, it may order the employer to reinstate him [ERA s 129]. If the employer fails to comply with such an order, the employee is deemed to remain in employment until the hearing, and entitled to continue to be paid as such [ERA s 132(2)].|
| || Clause 10 applies section 191 of the ERA, so that the Bill's provisions apply to Crown servants, other than members of the armed forces.|
| || Clause 11 provides that the Bill does not apply to Crown servants whose work is certified as safeguarding national security.|
| || Clause 12 applies section 196 of the ERA, so that the Bill's protection does not extend to workers who normally work outside the UK.|
| || Clause 13 provides that the provisions of the Bill do not apply to police officers.|
| || Clause 14 applies section 205 of the ERA, requiring claims under this Bill to be brought in an industrial tribunal.|
| || Clause 15 amends the interpretation provisions in section 230 of the ERA to take account of the definitions of "worker" and "protected disclosure" in this this Bill.|
| || Clause 16 extends the protection under section 237(1A) of the Trade Union and Labour Relations (Consolidation) Act 1992 to employees making protected disclosures under this Bill.|
| || Clause 17 provides for any Order in Council extending the provisions of this Bill to Northern Ireland to be made under the negative procedure.|
| || Clause 18 provides for the Bill to be brought into effect in stages, by order of the Secretary of State.|
| ||Financial effects of the Bill|
| || The Bill is not expected to have a significant effect on public expenditure.|
| ||Effects on Public Service Manpower|
| || The Bill is not expected to have a significant effect on public service manpower.|