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Protect call on Secretary of State to step in to fix flawed Utilities Act which gags whistleblowers

An OFGEM whistleblower – Greg Pytel – has been told that he is unable to challenge the victimising behaviour of his employer in the Employment Tribunal after he raised public interest concerns about the implementation of smart meters.  He is now having to take his case to the Court of Appeal, at his own expense.

Current legislation makes it a criminal offence (sec 105 of the Utilities Act 2000) to disclose information about the utilities sector.  The offence is so widely drawn that it prevents a whistleblower from enforcing their legal rights, through the Public Interest Disclosure Act (PIDA), against victimisation or dismissal for raising concerns.

The Employment Tribunal originally found sec. 105 frustrated the ability for Pytel to get a fair tribunal hearing, and breached his right to freedom of expression. But the tribunal lacked the power to declare the sec. 105 officially ‘incompatible’ and read wording into the act, as the Human Rights Act allows, that would allow Pytel’s case to be heard.

The EAT stated that though it also lacked the power to declare the legislation officially ‘incompatible’, it pointed out that only the Government or Parliament could create an exception for whistleblowing under sec. 105.  It concluded that Pytel’s whistleblowing claim could not progress, even though on the facts stated at tribunal, the claim in absence of sec. 105 could have been heard.

Pytel will now have to take his case to the Court of Appeal who have the power to issue a formal declaration of ‘incompatible’ against sec. 105 and that his right to a fair hearing.

We at Protect have intervened in the case in support of Greg Pytel who is being prevented not only from bringing a claim but also from speaking openly about the concerns he has.  This case shows how secc. 105 has an incredibly wide reach and impact and we are calling on the Government to urgently amend the law to allow whistleblowers to both raise their public interest concerns, and enable them to enforce their legal rights.  It’s clear from the legal judgments that the courts are probably unable to make this change even when they declare the law incompatible with the ECHR.

Pytel said, “OFGEM now accepts that Section 105 prevents me from having a fair trial, contrary to my basic human rights, and – more importantly to the public – my concerns about the smart metering project can’t be examined. The Government themselves have nothing to say about this.

He added, “I am therefore left having to take the Government all the way to the Court of Appeal to appeal the judgment and get a formal declaration of incompatibility. I should not have to do so. This requirement puts a burden on me as an individual litigant to correct the government’s systemic problems at my own expense, systemic problems which should not have occurred in the first instance. It should be role of public authorities to avoid such systemic problems occurring, and to correct them voluntarily if and when they do.”

Protect Head of Policy, Andrew Pepper-Parsons said, “OFGEM’s admission that this aspect of the Utilities Act is unlawful, highlights the very real urgency for the Secretary of State to use his power to remove this legislation that unlawfully gags whistleblowers and denies them access to justice.

“Given that there are many statutes containing similar ‘gagging clauses’ – with criminal prosecution as punishment for breach – we at Protect will be calling on urgent action as soon as possible. ”