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Raising concerns with the media and non-prescribed bodies. Section 43G the Public Interest Disclosure Act.

Section 43G ERA 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, [this subsection had been omitted by the Enterprise and Regulatory Reform Act 2013 and is not applicable to disclosures made on or after 25 June 2013]
(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.

Explanatory note

This section sets out the circumstances in which other disclosures, including those to the media, may be protected. Such disclosures must meet three tests to be protected. The first of these (s.43G(1)(a)-(c)) deals with the evidence and motive of the whistleblower. The second (s.43G(2)) sets out three preconditions, one of which must be met if the disclosure is to be subject to protection. Finally, to be protected the disclosure must be reasonable in all the circumstances (s.43G(1)(e) and (3)).

Subs. (1)(a)
Good faith - See comment on subsection 43C(1), supra.

Subs. (1)(b)
reasonable belief - See comment on ss.43F and 43F(1)(b)(ii), supra. If the concern had been raised internally beforehand or with a prescribed regulator, the reasonableness of the worker's belief would be assessed having regard to any response he had received from management or the prescribed regulator.

Subs. (1)(c)
personal gain - This provision - that the whistleblower will not be protected if the purpose of the disclosure was personal gain - is aimed primarily at cheque book journalism. It covers not only payments of money, but benefits in kind. It would also catch a situation where the benefit did not go directly to the worker but to a member of his family, provided that its purpose was personal gain. However, this provision does not cover any reward payable by or under any enactment (s.43L(2)), such as a payment made by Customs and Excise.

Subs. (1)(e)
In all the circumstances of the case - In determining whether the disclosure was reasonable in all the circumstances, the tribunal will have regard to the factors in s.43G (3).

Subs. (2)
The presumption is that, before any wider disclosure is protected, the concern will have been raised with the employer or with a prescribed regulator. This is reflected in three preconditions in this subsection, one of which must be met if a public disclosure under this section can be protected. These are that the worker reasonably believes he will be victimised; or that he reasonably believes there is likely to be a cover-up; or that the matter had previously been raised internally or with a prescribed regulator.

Subs. (2)(a)
The first precondition is that the worker reasonably believes he will be victimised were he to raise the matter internally or with a prescribed regulator. See for example Everett v Miyano Care Services where the Applicant stated she had not raised her concern internally because she had not thought of telling her employers and that, had she thought of it, she would have done so as they had always been approachable. The belief must exist at the time he makes the external disclosure, it must be objectively reasonable, and it must be that he will be victimised (note, by contrast, in subs. 2(b) that the test is reasonable belief that there is likely to be a cover-up).

To reduce the risk that this precondition is easily satisfied, it is suggested that organisations should (a) establish, deliver and promote a whistleblowing procedure; (b) ensure that everyone knows victimisation is unacceptable; and (c) make it clear that going to a prescribed regulator is acceptable. It is also suggested that organisations review how they have handled any such matter in the recent past. This is because a worker is more likely to be able to satisfy this precondition if he can show, by reference to a previous whistleblowing incident, that the employer's conduct could reasonably be seen as victimisation.For those advising workers before any disclosure is made, it is important to note that - even though reasonable fear of victimisation may justify the protection of a wider disclosure - reporting to a prescribed regulator in such circumstances more readily secures protection for the client. However, where the worker has good reason to believe that, as a result of the unacceptably close relationship between the prescribed regulator and the employer, he will be victimised, a wider disclosure will be protected provided it is reasonable in the circumstances.

Subs. (2)(b)
This precondition deals with circumstances where the worker reasonably believes a cover-up of the malpractice is likely to occur.

It can only be satisfied where there is no appropriate regulator prescribed under s.43F. Accordingly where there is a prescribed regulator, the Act suggests that a concern about a cover-up be raised with that regulator before any wider disclosure might be capable of protection (see subs. 2(c), below) unless the matter is exceptionally serious (s.43H).

Subs. (2)(c)
This provides that wider disclosures may be protected where the matter has previously been raised internally or with a prescribed regulator. However, for such disclosures to be protected the tribunal must have particular regard to the reasonableness of the response of the employer or regulator (s.43G(3)(e)). It should be noted that the disclosure does not have to be of exactly the same information, provided it is substantially the same. In ALM Medical Services v Bladon the EAT - though overturned on other grounds - urged tribunals "to adopt a common-sense broad approach" to this question.

Subs (2)(c)(i)
Where the concern had previously been raised with the employer, in determining whether the particular disclosure should be protected, the tribunal must have particular regard (s.43G(3)(f)) to whether the worker had complied with any whistleblowing procedure the organisation had.

Subs. (3)
In deciding whether the disclosure was reasonable in all the circumstances, the tribunal should have particular regard to the issues set out in this subsection. Where the disclosure was of non-confidential information, it is submitted that this reasonableness test should be more readily satisfied. (Reference may be made to the Human Rights Act 1998 which, in the context of freedom of expression, distinguishes confidential from non-confidential information).

Where the information was confidential, it may be helpful to bear in mind the way the courts have weighed the same issue under the law of confidence. However, while the Act does not require that these are followed, it is submitted that tribunals should not apply this reasonableness test more restrictively than the courts permit disclosures of confidential information. This is because to be protected under this Act, the worker must meet certain criteria (good faith; some reliable evidence; and one of the preconditions in subs. (2) above) which do not apply to the decisions at common law. If the tribunal is satisfied that these criteria are met, the Act does no more than require the tribunal to consider whether the disclosure was reasonable in all the circumstances. The only explicit reference in the Act to any confidentiality in the information is where the confidences of a third party have been breached: s.43G(3)(d).

Subs. (3)(a)
The range of people to whom such a disclosure might be made is potentially vast. It could include the police, a professional body, a non-prescribed regulator, a union official, an MP, the relatives of a patient at risk, a contracting party whose rights were being flouted, shareholders or the media.

In ALM Medical Services v Bladon the EAT - though overturned on other grounds - accepted that a disclosure of concerns about the care of residents to the Social Services Inspectorate (which was not prescribed under s.43F), made nine days after the matter had been raised internally, was reasonable.

As to the identity of the recipient, in Staples v Royal Sun Alliance an ET held it was reasonable to tell a customer of a breach in consumer law. As to media disclosures, tribunals have decided three cases, all involving the NHS. In Bright v Harrow & Hillingdon NHS Trust a disclosure to the press of a concern, that a nun who saw psychiatric patients while wearing her habit was a safety risk, was held to be unreasonable, the Applicant having asserted that it was for her, not her employer, to decide what was in the public interest. In Kay v Northumberland Healthcare NHS Trust a media disclosure was held reasonable where the Applicant wrote a satirical open letter to the Prime Minister in his local press about the shortage of beds for elderly patients. In Mounsey v Bradford NHS Trust it was held that it was reasonable for the Applicant to go on television to rebut criticisms of a colleague which she considered to be unfair.

On the basis that the identity of the recipient of the disclosure may be in contention between the parties, we also summarise the decisions where this issue has been considered in the courts under the law of confidence. In 1984 the Court of Appeal, in Francome v Daily Mirror [1984] 1WLR 892, held that the Daily Mirror could not publish confidential information which suggested that a jockey had been engaged in misconduct as the public interest would be just as well served by a disclosure to the police or the Jockey Club. This position was explained in Spycatcher no. 2, [1987] 3WLR p 776, (per Lord Griffiths p 794): "In certain circumstances the public interest may be better served by a limited form of publication perhaps to the police or some other authority who can follow up a suspicion that wrongdoing may lurk beneath the cloak of confidence. Those authorities will be under a duty not to abuse the confidential information and to use it only for the purpose of their inquiry."

As to cases where disclosures of confidential information to the media were justified, the following may be noted. In Initial Services v Putterill [1968] 1QB 396 a disclosure to the Daily Mail about price-fixing was held to be lawful by the Court of Appeal because the public were being misled. Similarly in Lion Laboratories v Evans [1984] 3 WLR 539 a case about suspect roadside breathalysers, the Court of Appeal held the press was an appropriate recipient of the information as it was important that people had the information needed to challenge criminal charges and it seemed that the Home Office - which had approved the breathalyser - was an interested party. In Cork v McVicar [1985] TLR 31/10/1985, the High Court allowed the Daily Express to publish allegations of corruption in the Metropolitan Police.

Subs. (3)(b)
It is submitted that a lower level of seriousness would be expected where a disclosure of confidential information was made to the police or a non-prescribed regulator, than if the same information was disclosed to the media (see reference above to Spycatcher no. 2).

Subs. (3)(c)
This provision implies it is more likely to be reasonable if the disclosure is about an on-going or future threat. This picks up a theme from the jurisprudence on the law of confidence (Weld-Blundell v Stephens [1919] 1 KB 520; Malone v Met Police [1979] 2WLR 700, p 716; Initial Services v Putterill [1968] 1QB 396, p 405; Schering Chemicals v Falkman [1981] 2WLR 848, p 869). Where the threat is passed, there needs to be a clear public interest in any confidential information being disclosed. In Spycatcher no 2 [1987] 3WLR p 776, Lord Griffiths (at p 804) said such a public interest might be to bring those responsible to account.

Subs. (3)(d)
This provision was inserted at Committee in the Commons to ensure that tribunals took account of the interests of a third party about whom confidential information had been disclosed. In moving the amendment, the Minister explained (Parliamentary Debates HC, Standing Committee D, 11 March 1998, cols. 8 / 9) that it was to deal with information subject to a banker-client or doctor-patient confidence. In such cases, tribunals would - it is submitted - do well to have close regard to the decision that would be reached if the third party sued the employer for breach of confidence. At Report stage in the Commons, the Minister (Hansard HC 24 April 1998, col. 1137) stated that "it is certainly not the intention that, where a bank has acted diligently, it should be liable for a breach of confidence by a client when a bank employee has made a public interest disclosure."

Its effect is not that the disclosure of such information should not be protected, rather that it is material in determining the reasonableness of the particular disclosure. A helpful example of this is in W v Egdell [1990] 2 WLR 471, where the Court of Appeal held that it was lawful for a consultant psychiatrist to disclose information about an in-patient to the medical director at the patient's hospital, where the consultant genuinely believed that a decision to release the patient was based on inadequate information and posed a real risk of danger to the public. However the court held that the sale of his story to the media would not have been justified, nor would an article in an academic journal unless it had concealed the patient's identity.

Where the disclosure did breach a duty of confidence owed by an employer to a third party, in determining the reasonableness of the disclosure it will be important to assess the effect of the breach on the rights of the third party and, in particular, any unjustifiable damage it caused him (Mr Shepherd, Parliamentary Debates HC Standing Committee D, 11 March 1998, col. 9).

Subs. (3)(e)
If the employer has investigated the concern and taken all reasonable action in respect of it but has left the whistleblower in ignorance of this, this may allow the worker to reasonably believe that no appropriate action was taken and to make a further disclosure. It is therefore desirable that the whistleblower is given feedback on, or is made aware of action taken as a result of, his concern and that this is provided within a reasonable period of time.

It is important to note that this section also applies where the concern has been raised with a prescribed regulator. As this has implications for employers, it is suggested that the organisation might sensibly request or instruct the prescribed regulator to communicate its findings to any whistleblower and to seek confirmation that this has been done.

Turning to the implications for prescribed regulators, this means that they too should be willing to consider providing the whistleblower with any appropriate feedback. If so, it would be sensible that they advise the organisation that they propose to do this. Insofar as the secrecy offences which govern parts of the work of prescribed regulators may inhibit the provision of such feedback, it should be noted that most such offences permit disclosures to be made with the consent of the person from whom the information has been obtained (and hence the employer can authorise the regulator to give feedback to the whistleblower). For these reasons, it is suggested that the prescribed regulator and the organisation should co-operate on how to ensure that reasonable feedback is made known to the whistleblower.

Subs. (3)(f)
As to the key elements of a whistleblowing procedure, see the reference in the section entitled Overview in the Explanatory Note to this Act and also the comments on s.43A and 43C(2), supra. Under a grievance procedure it is for the worker to prove his case. Under a whistleblowing procedure, however, the worker raises the matter so that others may investigate it; it is not for the worker to prove the case or to dictate what the response should be from those in charge. One of the main benefits of such a procedure is that it helps workers and managers understand that a whistleblower is a witness rather than a complainant.

It will not be enough to introduce such a procedure in a workplace if reasonable steps are not also taken to promote it to the workforce: see Kay v Northumberland Healthcare NHS Trust. Ideally once such a procedure is introduced, its use should be monitored and its role should be highlighted to the workforce (routinely depending on the size of the organisation), for example through team briefings, newsletters or posters.

Subs. (4)
This means that the worker will not lose protection if - in addition to disclosing the original concern - he comments on why he considers the initial response (be it of the employer or a prescribed regulator) was inadequate or unreasonable. See also the comment above on s.43G(2)(c) from the EAT decision ALM Medical Services v Bladon.

DEFINITIONS
"disclosure" : s.43L(3)
"employer" : s.43K(2)
"personal gain": s.43L(2)
"qualifying disclosure" : s.43B
"relevant failure" : s.43B(5)
"worker" : s.43K(1)