People who blow the whistle on crime, fraud and serious malpractice at work will have legal protection against reprisals under a new bill published today (13 February 1996).
The Bill, introduced by Don Touhig MP (Lab, Islwyn) with strong all-party support, would allow people who have acted in the public interest to obtain an injunction to protect themselves against victimisation, and get compensation if reprisals are taken. The Bill also contains safeguards to ensure that organisations are given the opportunity to correct matters internally first and that individuals are not encouraged to disclose information recklessly. The Bill is due for second reading in the House of Commons on March 1, when it is likely to be the subject of a five hour debate.
Mr Touhig said: “A constant theme of recent major accidents, financial scandals, and episodes of abuse, from Maxwell to BCCI, from the Clapham Rail disaster to the Beverley Allitt case, is that someone inside the organisation realised early on that something was wrong but was afraid to speak out, or punished for doing so. Employers are entitled to loyalty and confidentiality in normal circumstances. But where there is serious malpractice, it is vital that people know that the law will protect them if they act responsibly. This is not just for their sakes – it will protect us all. If people are afraid to speak out when they see something seriously wrong the abuse will continue and ultimately lives may be ruined.”
At a press conference in London today, three people who had found themselves in such situations, explained how the Bill would have helped them. Robbie Pennington, a nurse, was sacked after raising concerns about waste of NHS money on an ill-thought out building project. Beth Lawson, who worked in a supermarket, acted to stop her boss changing the dates on food that had passed its sell-by dates. Joy Cawthorne, was the instructor who blew the whistle on the Lyme Bay canoeing disaster. Their experiences are described on the attached note.
Several of the Bill’s parliamentary sponsors were also present at the press conference:
Edwina Currie MP (Con, Derbyshire South), said: ” I am very pleased to support this Bill. Both in the public and private sectors whistleblowing is now recognised as an important weapon in the fight against fraud, abuse, other malpractice and crime. People acting in the public interest should be protected from intimidation and unfair dismissal.”
Iain Duncan Smith MP (Con, Chingford), “Coming from a business background I see the Bill as implementing existing best practice. It is not a charter for troublemakers or the disgruntled. It encourages reasonable and sensible concerns to percolate through the system but acknowledges that if an organisation unreasonably refuses to take up a serious concern the individual must have the ability to go beyond it without fear of retribution.”
Richard Shepherd MP (Con, Aldridge-Brownhills) said: “The Bill is important to me because it provides the opportunity for individuals to reveal matters in their organisation that are against the public interest and have not been dealt with internally. I have been told by lorry drivers that they were disposing of toxic waste illegally. They knew it was wrong, didn’t want to do it, but were afraid to question it for fear of their jobs”.
Tony Wright MP (Lab, Cannock & Burntwood) who introduced a similar measure as a 10-minute rule bill last year said: “How can we call on people to act as responsible citizens, unless we protect them when they do? Our best safeguard against serious malpractice is the individual inside the organisation who cannot turn a blind eye to what is plainly wrong. But we cannot leave them to sacrifice their jobs and their future when they try to do something about it.”
What the Bill says
The Public Interest Disclosure Bill would protect employees, members of a profession, office holders and others who disclose information about serious malpractice and misconduct within an organisation which threatens the public interest. It applies in the public, private and voluntary sectors. To qualify for protection, the individual must raise the issue internally with the organisation first – and could not be penalised for doing so. This would enable those in charge to investigate and deal with any malpractice or explain if the concern was misplaced. If, after the matter had been raised internally, serious malpractice was allowed to continue, the individual would be protected from reprisals if he or she felt that an external disclosure of confidential information was necessary. However, the disclosure must be one that a court would find lawful and and justified in the public interest, in an action for breach of confidence. The public interest would have to be sufficient to outweigh the normal duty of confidentiality; this would exclude trivial complaints, or disclosures which were not genuinely in the public interest. It may also mean that the disclosure should be made to an appropriate regulatory body, though in cases of corruption or serious risk to the public, wider disclosure can be held to be lawful.
An individual would not be protected under the Bill if he or she had not raised the matter internally first, or was acting in bad faith, selling the story to the newspaper or did not have reasonable grounds to believe the information was accurate. But if these conditions were met, and the disclosure was in the public interest, the individual could not then be dismissed, singled out for redundancy, denied any promised promotion or benefit or discriminated against in any other way.
The individual would be able to obtain an injunction to prevent threats of reprisals being carried out and would be entitled to compensation in court for loss of earnings, distress and damage to reputation. If either the individual or the organisation had behaved particularly badly, any compensation could be reduced or increased accordingly. An employee who was dismissed in these circumstances could go to an industrial tribunal instead of a court. He or she would have been unfairly dismissed, even if employed for less than two years or beyond retirement age. The employee would be entitled to compensation not limited to the normal maximum of £11,000. If an individual against whom reprisals had been taken later obtained an out of court settlement, the settlement could not force him or her to keep silent about the malpractice.
The Bill would also provide a narrowly defined public interest defence to anyone charged under the Official Secrets Act 1989 – provided that all the Bill’s requirements had been met. The burden of demonstrating an overriding public interest would be much greater in relation to such disclosures than for other confidential information. The Bill also amends section 10 of the Contempt of Court Act 1981, dealing with the protection of journalists’ sources.
The bill has wide support from, amongst others, the Institute of Management, the Association of First Division Civil Servants, the BMA, the Guild of Editors, Consumers Association, the National Consumer Council, Article 19, companies such as Cadbury Schweppes, TSB and the Co-Op, the TUC, the NUJ, Unison, the GPMU and MSF. Bodies such as the Institute of Directors, the Audit Commission and the Nolan Committee have welcomed the initiative, which has been drafted with the assistance of Public Concern at Work and the Campaign for Freedom of Information.
The Bill’s sponsors
The Bill’s sponsors in the House of Commons are: Malcolm Bruce (LD); Sir Patrick Cormack (Con); Edwina Currie (Con); Cynog Dafis (PC); Iain Duncan Smith (Con); Derek Fatchett (Lab); Sir David Knox (Con); Giles Radice (Lab); Andrew Rowe (Con); Richard Shepherd (Con); and Tony Wright (Lab).
The views of whistleblowers
Joy Cawthorne was the instructor who blew the whistle on the Lyme Bay canoeing disaster. Months before the tragedy in which four schoolchildren drowned, Joy resigned from the centre after her warnings that a disaster was waiting to happen were ignored. Her evidence led to the first ever conviction for corporate manslaughter in the UK in December 1994, which was upheld last week in the Court of Appeal. Joy comments “If this Law had been in force, those kids might now be alive. For my part, it would have given me the confidence to pursue my concerns with outside authorities who could have taken action to prevent the disaster.”
Beth Lawson worked on the delicatessen in a major supermarket, selling dairy produce, cheeses and pates. Her boss was regularly changing the dates on food that had passed its sell-by date. Her initial attempts with other staff to tackle the malpractice had little success. Her colleagues were reluctant to take the matter further in case it jeopardised their jobs. Knowing she would be leaving to go to start a career, Beth raised the matter with the company’s HQ. Her concerns were investigated and the malpractice was stopped. Beth comments “My colleagues were understandably worried about the consequences if they took the matter further, even though it presented a real health risk to vulnerable customers. This Bill will give a clear signal that people won’t have to suffer when they do the right thing”.
Robbie Pennington had 17 trouble-free years in the NHS as a registered nurse. Shortly after joining Northumberland Mental Health NHS Trust he raised concerns internally about a £1,000,000 building project which had been ill-thought out. £100,000 of repairs are now needed and one of the buildings has remained empty for months. He was sacked for his troubles. Because his concerns also had a safety angle, he won a claim for unfair dismissal in January 1996. The maximum compensation he can get is £11,000 even though he has lost a £20,000 a year job and may have problems moving to another Trust. Robbie comments “Even though I won my case, it was an unrewarding experience and I have lost out. Unless people in the NHS are protected from raising such concerns, there will be no real accountability over how public money is spent and the well-being of patients will be jeopardised. This much needed Bill will change that”.
Joy Cawthorne, Beth Lawson and Robbie Pennington will be attending the press launch of the Bill on February 13th at 11 am in the Jubilee Rooms at the House of Commons and will be happy to take questions then. Alternatively they can be reached by contacting Public Concern at Work.
Why blow the whistle?
Enquiries into some of the worst frauds and disasters of recent years highlight the importance of acting early on concerns raised by employees:
FOUR DIE IN CANOEING ACCIDENT
1994: After four children drown in a canoeing accident at Lyme Regis, the managing director is convicted of manslaughter and sent to prison for three years after ignoring a graphic warning.
COURT HEARD: Two instructors had sent a letter to the chief executive of the centre a year before the accident, stating: “You should have a careful look at your standards of safety. Otherwise you might find yourselves trying to explain why someone’s son or daughter will not be coming home.”
1993: Two thousand bone tumour cases are re-examined after an inquiry discovered that a senior pathologist at Birmingham’s Royal Orthopaedic Hospital had misdiagnosed 42 cancer cases.
INQUIRY FOUND: Two consultants had expressed doubts about the diagnoses over several years, but they failed to speak up through official channels.
£2 BILLION FRAUD SINKS BCCI
1991: Bank of Credit and Commerce International closes, the victim of a 19-year-old fraud causing estimated losses of over £2 billion worldwide.
INQUIRY FOUND: BCCI had an “autocratic environment” in which no one dared to speak up. Although rumours about the bank’s probity circulated throughout the City and abroad, the only employee known to have reported concerns about irregularities was an internal auditor who was subsequently made redundant.
PIPER ALPHA EXPLODES
1988: Piper Alpha oil platform explodes 110 miles off the coast of Scotland. 167 people die.
INQUIRY FOUND: “Workers did not want to put their continued employment in jeopardy through raising a safety issue that might embarrass management.”
HERALD OF FREE ENTERPRISE CAPSIZES
1987: Herald of Free Enterprise capsizes off Zeebrugge, 193 people die.
INQUIRY FOUND: Concerns about sailing with the bow doors open had been raised on five previous occasions. A suggestion had been made to fit lights to the bridge to indicate whether the doors had been closed. The inquiry concluded: “if [this] sensible suggestion … had received the serious consideration it deserved, this disaster may well have been prevented.”
Campaign for Freedom of Information
& Public Concern at Work