Public Interest Disclosure Bill

This is the text of the Public Interest Disclosure Bill, as amended in Committee in the House of Commons on 11 March 1998. The Bill received its Second Reading on 12 December 1997. You can also read the Bill in its unamended form.

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)].

A disclosure is not protected if it involves the committing of an offence [section 43B(3)], 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(4)].

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 sections 43G and 43H are protected only if both these additional conditions are met. The requirement that the disclosure should not be made for the purposes of personal gain does not apply to section 43F.

Section 43F (Disclosure to prescribed person) provides that disclosures to persons 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 and persons (such as health and safety representatives) as persons 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 do 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; and whether the employer owes a duty of confidentiality, in relation to that information, to a third party.

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 provided it is reasonable to have made it in the circumstances, and in particular whether it was reasonable to have disclosed the information to the person concerned.

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 47B 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 employment 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 the security services and to those 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.

Public Interest Disclosure Bill

A
B I L L
[AS AMENDED IN STANDING COMMITTEE D]
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.
BE IT ENACTED by the Queen's most Excellent Majesty, by and with the advice and consent of the Lords Spiritual and Temporal, and Commons, in this present Parliament assembled, and by the authority of the same, as follows:-

Protected disclosures.     1. After Part IV of the Employment Rights Act 1996 (in this Act referred to as "the 1996 Act") there is inserted-

"PART IVA

PROTECTED DISCLOSURES

Meaning of "protected disclosure".     43A. In this Act a "protected disclosure" means a qualifying disclosure (as defined by section 43B) which is made by a worker in accordance with any of sections 43C to 43H.

Disclosures qualifying for protection.     43B. - (1) In this Part a "qualifying disclosure" means any disclosure of information which, in the reasonable belief of the worker making the disclosure, tends to show one or more of the following-

(a) that a criminal offence has been committed, is being committed or is likely to be committed,

(b) that a person has failed, is failing or is likely to fail to comply with any legal obligation to which he is subject,

(c) that a miscarriage of justice has occurred, is occurring or is likely to occur,

(d) that the health or safety of any individual has been, is being or is likely to be endangered,

(e) that the environment has been, is being or is likely to be damaged, or

(f) that information tending to show any matter falling within any one of the preceding paragraphs has been, is being or is likely to be deliberately concealed.

    (2) For the purposes of subsection (1), it is immaterial whether the relevant failure occurred, occurs or would occur in the United Kingdom or elsewhere, and whether the law applying to it is that of the United Kingdom or of any other country or territory.

    (3) A disclosure of information is not a qualifying disclosure if the person making the disclosure commits an offence by making it.

    (4) A disclosure of information in respect of which a claim to legal professional privilege (or, in Scotland, to confidentiality as between client and professional legal adviser) could be maintained in legal proceedings is not a qualifying disclosure if it is made by a person to whom the information had been disclosed in the course of obtaining legal advice.

    (5) In this Part "the relevant failure", in relation to a qualifying disclosure, means the matter falling within paragraphs (a) to (f) of subsection (1).

Disclosure to employer or other responsible person.     43C. - (1) A qualifying disclosure is made in accordance with this section if the worker makes the disclosure in good faith-

(a) to his employer, or

(b) where the worker reasonably believes that the relevant failure relates solely or mainly to-

(i) the conduct of a person other than his employer, or

(ii) any other matter for which a person other than his employer has legal responsibility,

to that other person.

    (2) A worker who, in accordance with a procedure whose use by him is authorised by his employer, makes a qualifying disclosure to a person other than his employer, is to be treated for the purposes of this Part as making the qualifying disclosure to his employer.

Disclosure to legal adviser.     43D. A qualifying disclosure is made in accordance with this section if it is made in the course of obtaining legal advice.

Disclosure to Minister of the Crown.     43E. A qualifying disclosure is made in accordance with this section if-

(a) the worker's employer is-

(i) an individual appointed under any enactment by a Minister of the Crown, or

(ii) a body any of whose members are so appointed, and

(b) the disclosure is made in good faith to a Minister of the Crown.

Disclosure to prescribed person.     43F. - (1) A qualifying disclosure is made in accordance with this section if the worker-

(a) makes the disclosure in good faith to a person prescribed by an order made by the Secretary of State for the purposes of this section, and

(b) reasonably believes-

(i) that the relevant failure falls within any description of matters in respect of which that person is so prescribed, and

(ii) that the information disclosed, and any allegation contained in it, are substantially true, and

    (2) An order prescribing persons for the purposes of this section may specify persons or descriptions of persons, and shall specify the descriptions of matters in respect of which each person, or persons of each description, is or are prescribed.

Disclosure in other cases.     43G. - (1) A qualifying disclosure is made in accordance with this section if-

(a) the worker makes the disclosure in good faith,

(b) he reasonably believes that the information disclosed, and any allegation contained in it, are substantially true,

(c) he does not make the disclosure for purposes of personal gain,

(d) any of the conditions in subsection (2) is met, and

(e) in all the circumstances of the case, it is reasonable for him to make the disclosure.

    (2) The conditions referred to in subsection (1)(d) are-

(a) that, at the time he makes the disclosure, the worker reasonably believes that he will be subjected to a detriment by his employer if he makes a disclosure to his employer or in accordance with section 43F,

(b) that, in a case where no person is prescribed for the purposes of section 43F in relation to the relevant failure, the worker reasonably believes that it is likely that evidence relating to the relevant failure will be concealed or destroyed if he makes a disclosure to his employer, or

(c) that the worker has previously made a disclosure of substantially the same information-

(i) to his employer, or

(ii) in accordance with section 43F.

    (3) In determining for the purposes of subsection (1)(e) whether it is reasonable for the worker to make the disclosure, regard shall be had, in particular, to-

(a) the identity of the person to whom the disclosure is made,

(b) the seriousness of the relevant failure,

(c) whether the relevant failure is continuing or is likely to occur in the future,

(d) whether the disclosure is made in breach of a duty of confidentiality owed by the employer to any other person,

(e) in a case falling within subsection (2)(c)(i) or (ii), any action which the employer or the person to whom the previous disclosure in accordance with section 43F was made has taken or might reasonably be expected to have taken as a result of the previous disclosure, and

(f) in a case falling within subsection (2)(c)(i), whether in making the disclosure to the employer the worker complied with any procedure whose use by him was authorised by the employer.

    (4) For the purposes of this section a subsequent disclosure may be regarded as a disclosure of substantially the same information as that disclosed by a previous disclosure as mentioned in subsection (2)(c) even though the subsequent disclosure extends to information about action taken or not taken by any person as a result of the previous disclosure.

Disclosure of exceptionally serious failure.     43H. A qualifying disclosure is made in accordance with this section if-

(a) the worker makes the disclosure in good faith,

(b) he reasonably believes that the information disclosed, and any allegation contained in it, are substantially true,

(c) he does not make the disclosure for purposes of personal gain,

(d) the relevant failure is of an exceptionally serious nature, and

(e) in all circumstances of the case it is reasonable for him to make the disclosure.

    (2) In determining for the purposes of subsection (1)(e) whether it is reasonable for the worker to make the disclosure, regard shall be had, in particular, to the identity of the person to whom the disclosure is made.

Contractual duties of confidentiality.     43J. - (1) Any provision in an agreement to which this section applies is void in so far as it purports to preclude the worker from making a protected disclosure.

    (2) This section applies to any agreement between a worker and his employer (whether a worker's contract or not), including an agreement to refrain from instituting or continuing any proceedings under this Act or any proceedings for breach of contract.

Extension of meaning of "worker" etc. for Part IVA.     43K. - (1) For the purposes of this Part "worker" includes an individual who is not a worker as defined by section 230(3) but who-

(a) works or worked for a person in circumstances in which-

(i) he is or was introduced or supplied to do that work by a third person, and

(ii) the terms on which he is or was engaged to do the work are or were in practice substantially determined not by him but by the person for whom he works or worked, by the third person or by both of them,

(b) contracts or contracted with a person, for the purposes of that person's business, for the execution of work to be done in a place not under the control or management of that person and would fall within section 230(3)(b) if for "personally" in that provision there were substituted "(whether personally or otherwise)",

(c) works or worked as a person providing general medical services, general dental services, general ophthalmic services or pharmaceutical services in accordance with arrangements made-

(i) by a Health Authority under section 29, 35, 38 or 41 of the National Health Service Act 1977, or

(ii) by a Health Board under section 19, 25, 26 or 27 of the National Health Service (Scotland) Act 1978, or

(d) is or was provided with work experience provided pursuant to a training course or programme or with training for employment (or with both) otherwise than-

(i) under a contract of employment, or

(ii) by an educational establishment on a course run by that establishment;

and any reference to a worker's contract, to employment or to a worker being "employed" shall be construed accordingly.

    (2) For the purposes of this Part "employer" includes-

(a) in relation to a worker falling within paragraph (a) of subsection (1), the person who substantially determines or determined the terms on which he is or was engaged,

(b) in relation to a worker falling within paragraph (c) of that subsection, the authority or board referred to in that paragraph, and

(c) in relation to a worker falling within paragraph (d) of that subsection, the person providing the work experience or training.

    (3) In this section "educational establishment" includes any university, college, school or other educational establishment.

Other interpretative provisions.     43L. - (1) In this Part-

"qualifying disclosure" has the meaning given by section 43B;

"the relevant failure", in relation to a qualifying disclosure, has the meaning given by section 43B(6).

    (2) In determining for the purposes of this Part whether a person makes a disclosure for purposes of personal gain, there shall be disregarded any reward payable by or under any enactment.

    (3) Any reference in this Part to the disclosure of information shall have effect, in relation to any case where the person receiving the information is already aware of it, as a reference to bringing the information to his attention."

Right not to suffer detriment.     2. After section 47A of the 1996 Act there is inserted-

"Protected disclosures.     47B. - (1) A worker has the right not to be subjected to any detriment by any act, or any deliberate failure to act, by his employer done on the ground that the worker has made a protected disclosure.

    (2) Except where the worker is an employee who is dismissed in circumstances in which, by virtue of section 197, Part X does not apply to the dismissal, this section does not apply where-

(a) the worker is an employee, and

(b) the detriment in question amounts to dismissal (within the meaning of that Part).

    (3) For the purposes of this section, and of sections 48 and 49 so far as relating to this section, "worker", "worker's contract", "employment" and "employer" have the extended meaning given by section 43K."

Complaints to employment tribunal.     3. In section 48 of the 1996 Act (complaints to employment tribunals), after subsection (1) there is inserted-

    "(1A) A worker may present a complaint to an employment tribunal that he has been subjected to a detriment in contravention of section 47B."

Limit on amount of compensation.     4. - (1) Section 49 of the 1996 Act (remedies) is amended as follows.

    (2) At the beginning of subsection (2) there is inserted "Subject to subsection (6)".

    (3) After subsection (5) there is inserted-

    "(6) Where-

(a) the complaint is made under section 48(1A),

(b) the detriment to which the worker is subjected is the termination of his worker's contract, and

(c) that contract is not a contract of employment,

any compensation must not exceed the compensation that would be payable under Chapter II of Part X if the worker had been an employee and had been dismissed for the reason specified in section 103A."

Unfair dismissal.     5. After section 103 of the 1996 Act there is inserted-

"Protected disclosure.     103A. An employee who is dismissed shall be regarded for the purposes of this Part as unfairly dismissed if the reason (or, if more than one, the principal reason) for the dismissal is that the employee made a protected disclosure."

Redundancy.     6. After subsection (6) of section 105 of the 1996 Act (redundancy) there is inserted-

    "(6A) This subsection applies if the reason (or, if more than one, the principal reason) for which the employee was selected for dismissal was that specified in section 103A."

Exclusion of restrictions on right not to be unfairly dismissed.     7. - (1) In subsection (3) of section 108 of the 1996 Act (cases where qualifying period of employment not required), after paragraph (f) there is inserted-

"(ff) section 103A applies,"

    (2) In subsection (2) of section 109 of the 1996 Act (disapplication of upper age limit), after paragraph (f) there is inserted-

"(ff) section 103A applies,".

Compensation for unfair dismissal.     8. - (1) In section 112(4) of the 1996 Act (compensation for unfair dismissal) after "sections 118 to 127A" there is inserted "or in accordance with regulations under section 127B".

    (2) In section 117 of that Act (enforcement of order for reinstatement or re-engagement)-

(a) in subsection (2) after "section 124" there is inserted "and to regulations under section 127B", and

(b) in subsection (3) after "and (2)" there is inserted "and to regulations under section 127B".

    (3) In section 118 of that Act (general provisions as to unfair dismissal), at the beginning of subsection (1) there is inserted "Subject to regulations under section 127B,".

    (4) After section 127A of the 1996 Act there is inserted-

"Dismissal as a result of protected disclosure.     127B. - (1) This section applies where the reason (or, if more than one, the principal reason)-

(a) in a redundancy case, for selecting the employee for dismissal, or

(b) otherwise, for the dismissal,

is that specified in section 103A.

    (2) The Secretary of State may by regulations provide that where this section applies any award of compensation for unfair dismissal under section 112(4) or 117(1) or 117(3) shall, instead of being calculated in accordance with the provisions of sections 117 to 127A, consist of one or more awards calculated in such manner as may be prescribed by the regulations.

    (3) Regulations under this section may, in particular, apply any of the provisions of sections 117 to 127A with such modifications as may be specified in the regulations."

Interim relief.     9. In sections 128(1)(b) and 129(1) of the 1996 Act (which relate to interim relief) for "or 103" there is substituted ", 103 or 103A".

Crown employment.     10. In section 191 of the 1996 Act (Crown employment), in subsection (2) after paragraph (a) there is inserted-

"(aa) Part IVA,".

National security.     11. - (1) Section 193 of the 1996 Act (national security) is amended as follows.

    (2) In subsection (2) after paragraph (b) there is inserted -

"(bb) Part IVA,

(bc) in Part V, section 47B,".

    (3) After subsection (3) of that section there is inserted-

    "(4) Part IVA and sections 47B and 103A do not have effect in relation to employment for the purposes of the Security Service, the Secret Intelligence Service or the Government Communications Headquarters."

Work outside Great Britain.     12. - (1) Section 196 of the 1996 Act (employment outside Great Britain) is amended as follows.

    (2) After subsection (3) there is inserted-

    "(3A) Part IVA and section 47B do not apply to employment where under the worker's contract he ordinarily works outside Great Britain."

    (3) In subsection (5), after "subsections (2)" there is inserted ", (3A)".

Police officers.     13. In section 200 of the 1996 Act (police officers), in subsection (1) (which lists provisions of the Act which do not apply to employment under a contract of employment in police service, or to persons engaged in such employment)-

(a) after "Part III" there is inserted "Part IVA", and

(b) after "47" there is inserted "47B".

Remedy for infringement of rights.     14. In section 205 of the 1996 Act (remedy for infringement of certain rights) after subsection (1) there is inserted-

    "(1A) In relation to the right conferred by section 47B, the reference in subsection (1) to an employee has effect as a reference to a worker."

Interpretative provisions of 1996 Act.     15. - (1) At the end of section 230 of the 1996 Act (employees, workers etc) there is inserted-

    "(6) This section has effect subject to sections 43K and 47B(3); and for the purposes of Part XIII so far as relating to Part IVA or section 47B, "worker", "worker's contract" and, in relation to a worker, "employer", "employment" and "employed" have the extended meaning given by section 43K."

    (2) In section 235 of the 1996 Act (other definitions) after the definition of "position" there is inserted-

""protected disclosure" has the meaning given by section 43A;".

Dismissal of those taking part in unofficial industrial action.     16. - (1) In section 237 of the Trade Union and Labour Relations (Consolidation) Act 1992 (dismissal of those taking part in unofficial industrial action), in subsection (1A) (which provides that the exclusion of the right to complain of unfair dismissal does not apply in certain cases)-

(a) for "or 103" there is substituted ", 103 or 103A", and

(b) for "and employee representative cases)" there is substituted "employee representative and protected disclosure cases)".

Corresponding provision for Northern Ireland.     17. An Order in Council under paragraph 1(1)(b) of Schedule 1 to the Northern Ireland Act 1974 (legislation for Northern Ireland in the interim period) which states that it is made only for purposes corresponding to those of this Act-

(a) shall not be subject to paragraph 1(4) and (5) of that Schedule (affirmative resolution of both Houses of Parliament), but

(b) shall be subject to annulment in pursuance of a resolution of either House of Parliament.

Short title, interpretation, commencement and extent.     18. - (1) This Act may be cited as the Public Interest Disclosure Act 1998.

    (2) In this Act "the 1996 Act" means the Employment Rights Act 1996.

    (3) Subject to subsection (4), this Act shall come into force on such day or days as the Secretary of State may by order made by statutory instrument appoint, and different days may be appointed for different purposes.

    (4) The following provisions shall come into force on the passing of this Act-

(a) section 1 so far as relating to the power to make an order under section 43F of the 1996 Act,

(b) section 8 so far as relating to the power to make regulations under section 127B of the 1996 Act,

(c) section 17, and

(d) this section.

    (5) This Act, except section 17, does not extend to Northern Ireland.

Presented by Mr Richard Shepherd
supported by Mr Malcolm Bruce,
Mr Dale Campbell-Savours,
Mr Ross Cranston, Sir Patrick Cormack,
Mr Cynog Dafis, Mr Iain Duncan Smith,
Mr John Healey, Mr Giles Radice,
Mr Andrew Rowe, Mr Don Touhig,
and Dr Tony Wright.

Prepared by the Campaign for Freedom of Information 26 March 1998


	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)].
	A disclosure is not protected if it involves the committing of an offence [section 43B(3)], 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(4)].
	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 sections 43G and 43H are protected only if both these additional conditions are met. The requirement that the disclosure should not be made for the purposes of personal gain does not apply to section 43F.
	Section 43F (Disclosure to prescribed person) provides that disclosures to persons 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 and persons (such as health and safety representatives) as persons 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 do 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; and whether the employer owes a duty of confidentiality, in relation to that information, to a third party.
	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 provided it is reasonable to have made it in the circumstances, and in particular whether it was reasonable to have disclosed the information to the person concerned.
	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 47B 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 employment 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 the security services and to those 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.

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