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Internal Disclosures

INTERNAL DISCLOSURES

The Public Interest Disclosure Act 1998 (PIDA) makes it unlawful to subject a worker to negative treatment or to dismiss them because they have raised a whistleblowing concern. Raising a whistleblowing concern is also known as a making a ‘protected disclosure’ in law.

Whistleblowing rights under PIDA are day one rights. This means that a worker or employee can bring a legal claim under PIDA as a whistleblower from the first day of their employment. This differs from other employment rights which require the employee or worker to have two years of service.

Under PIDA you can make disclosures both internally, e.g. your employer and externally, with corresponding legal tests dependent on who you make your disclosure to. As a general rule, the further out of your employer that you go (in making a disclosure) the more stringent these legal tests become.

Disclosure to Employer or Other Responsible Person (section 43C PIDA)

S43C is at the heart of PIDA, as it emphasises the vital role of those who are legally accountable for the conduct or practice complained of in question. It does this by helping to ensure that they are made aware of concerns, so they can investigate and address them. S43C sets out the wide circumstances in which a worker is protected if he raises the concern with his employer or a responsible person.

S43B of PIDA establishes the types of disclosures qualifying for protection. Once the substance of your disclosure is established, the second step is to look at who the disclosure was made to, which will determine whether or not your disclosure is protected. Internal disclosures, i.e. a disclosure made to your employer is covered by S.43C of PIDA and is generally the easiest legal test to satisfy under PIDA.

Expand the sections below to find out more.

What the law says: 

s43C (1) A qualifying disclosure is made in accordance with this section if the worker makes the disclosure […]-

(a) to his employer

What does this mean?

This includes a disclosure to any person senior to the worker, who has been expressly or implicitly authorised by the employer as having management responsibility over the worker.

What the law says:

s43C (1) A qualifying disclosure is made in accordance with this section if the worker makes the disclosure […]-

(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.

What does this mean?

 If a worker reasonably believes that someone other than his employer bears sole or primary responsibility for the malpractice in question, then a disclosure to that other person will also qualify. For example, this may include:

  • A nurse employed by an agency who, in the care home where she works, raises a concern about malpractice with the management of that care home.
  • A worker in an auditing firm who raises a concern with a client.
  • Someone who works for a highway contractor, who raises a concern with the local authority that the performance of the contract exposes the authority to negligence claims from injured pedestrians.

What the law says:

s43C(1) A qualifying disclosure is made in accordance with this section if the worker makes the disclosure […]-

(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.

What does this mean?

A disclosure to a non-employer can include:

  • health and safety representative
  • a union official, its parent company
  • a retired non-executive director
  • its lawyers or external auditors
  • a commercial reporting hotline

These disclosures will be treated as a disclosure to the employer in circumstances where the worker follows a procedure that has been authorised by his employer, e.g. the contact is listed in the whistleblowing policy. See for example Brothers of Charity Services Merseyside v Eleady-Cole [2002] All ER (D) 198 (EAT).