Who'd protect a grass?

The Public Interest Disclosure Bill aims to give whistle-blowers protection against reprisal. But it faces tough opposition. By Alison Clarke
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The Independent Online
Six months before the Lyme Bay canoeing tragedy, one of the instructors at the outdoor centre told her employers that if standards did not improve, they might find themselves trying to explain why someone's son or daughter would not be coming home. Despite Joy Cawthorne's warning, the activities continued and four schoolchildren subsequently died.

She believes that had there been legislation in place to protect employees who want to blow the whistle on serious malpractice by employers, then those children might now be alive. "It would have given me the confidence to pursue my concerns with outside authorities who could have taken action to prevent the disaster," she says.

On 1 March, 1996, Don Touhig, Labour MP for Islwyn, introduced the Public Interest Disclosure Bill to provide genuine whistle-blowers with protection if their action was in the public interest. He did so following the experience of one of his own constituents, David Griffiths, who blew the whistle on some dubious practices at the Health Promotion Agency in Wales. He found himself shunned by the other members and subsequently lost his seat on the quango.

At the Second Reading of the Bill, Mr Touhig insisted that it was "not a nitpicker's charter; [that] it will not provide a field day for whingers".

But how can he be sure? Because, he claims, "it will protect only those individuals who, having discovered some crime, fraud or wrongdoing within their organisations, raise their concerns internally first. Only then will they be protected against reprisals. The individual must be seen to have acted responsibly."

Maurice Frankel, of the Campaign for Freedom of Information, argues that one of the main aims of the Bill is to get things put right. "Because there is no requirement to raise the matter internally," he says, "this should help the organisation as it gives them the opportunity to deal with the matter themselves, which they do not have at present."

Likewise, if the individual is not acting in good faith, has not checked out if the information is accurate and has only made the disclosure for financial gain, then he cannot hope to benefit from the Bill's protective shield.

As the law stands, an employee is not allowed to disclose any information that might embarrass or cause harm to the employer. Should that happen, the employer can discipline or dismiss the employee, start an action for breach of contract, or seek an injunction to prevent the disclosure. All that the genuine whistle-blower can say in defence is that he had just cause to make the disclosure, which revealed corruption, crime or some other serious malpractice. It is then up to the court to decide whether it agrees that it was in the public interest to do so.

A body of case law stemming back to 1856 has established that "there is no confidence in iniquity", thereby accepting that a duty of confidence can be breached to disclose information about criminal or illegal acts. So although today's whistle-blower can hope to rely on the defence of "just cause", he cannot be protected against victimisation and has no right to compensation if he loses his job as the result of the disclosure.

What the Bill aims to do is to codify that "just cause" defence and thereby provide the genuine whistle-blower with protection against any reprisals by his employer. It would apply equally to the public, private and voluntary sectors; to employees as well as voluntary workers, members of any organisation or holders of any office.

Individuals would be able to seek an injunction to stop reprisals being carried out and would be entitled to compensation in court for loss of earnings, distress and damage to reputation. In other words, the Bill would provide whistle-blowers with the power of the pre-emptive strike.

Mr Frankel says: "This is its primary purpose: to provide individuals with the opportunity to seek protection against reprisals." Reprisals include dismissal, selection for redundancy, discrimination or any form of adverse treatment, which would include being passed over for promotion.

An employee dismissed in these circumstances could claim automatic unfair dismissal in an industrial tribunal, irrespective of length of service, with no maximum ceiling on the claim.

The example of Robbie Pennington is a case in point. Mr Pennington, who was a nurse at the Northumberland Mental Health NHS Trust, raised concerns about a major building project that had been badly thought out. He was sacked for his efforts, and although he subsequently won his claim for unfair dismissal, his compensation was limited to the maximum of pounds 11,000 even though he lost a job paying him pounds 20,000 a year.

But the Bill will never make it to the statute book without the backing of the Government, which is currently withholding support on the basis that it represents a burden on industry. The Bill's supporters argue that it will not impose any costs on organisations and that the Government itself has welcomed the efforts of whistle-blowers in the past.

Guy Dehn, of the charity Public Concern At Work, criticises the approach of government which is "to legislate after the disaster". He points to the statute that came into force after the Piper Alpha disaster; the Act relating to activity centres following the Lyme Bay canoeing tragedy and, from next year, legislation for pension trustees post-Maxwell. He argues that "this is a naive approach to take in this matter".

For its part, the Government says that current employment legislation already provides protection. At the Bill's Second Reading, Mr John Taylor, the Minister for Competition and Consumer Affairs, argued that sufficient protection exists for individuals, but that the Government was always ready to consider the case for specific protection where justified.

At the moment there is stalemate. The Bill has gone through its committee stage and is due to return to the House for its Third Reading in mid-July. But unless the Government can be persuaded to give its support, the only whistle likely to be blown is the one indicating that the Bill has finally run out of time.

The author is legal officer with the Manufacturing, Science and Finance Union.