What is a protected disclosure? 43A of the Public Interest Disclosure Act 1998

Section 1 PIDA
Protected disclosures
1. - After Part 4 of the Employment Rights Act 1996 (in this Act referred to as "the 1996 Act") there is inserted-

PART 4A

PROTECTED DISCLOSURES

Section 1 PIDA
Protected disclosures
1. - After Part 4 of the Employment Rights Act 1996 (in this Act referred to as "the 1996 Act") there is inserted-

PART 4A

Section 43A ERA
Meaning of protected disclosure

For a whistleblowing disclosure to be considered as a protected disclosure, the following requirements must be satisfied:

  1. There needs to be a “disclosure” within the meaning of the Act;
  2. It must be a “qualifying disclosure”;
  3. It must be made in a manner that accords with the scheme set out in ss43C-43H ERA.

Has there been a disclosure within the meaning of the Act?

  1. Information

Section 43B ERA sets out what type of disclosures of will qualify for protection, provided that they meet the other conditions in sections 43C to 43H ERA.

There must be disclosure of “information”, as ordinarily understood (i.e. conveying facts). It is not sufficient that the claimant has simply made allegations about the wrongdoer (Cavendish Munro Professional Risks Management Ltd v Geduld [2010] IRLR 38) or expressed an opinion about something the employer has done (Goode v Marks & Spencer plc UKEAT/0442/09 (14 April 2010, unreported).

However, it has been recognised that the distinction can be a fine one to draw and the assessment of whether there has been a disclosure of information will always be fact sensitive (Western Union Payment Services UK Ltd v Anastasiou UKEAT/0135/13 (21 February 2014, unreported).

In Kilraine v London Borough of Wandsworth [2016] IRLR 422, Langstaff J (at [30]) cautioned against the application of the ‘Cavendish principle’, as the division between “information” and “allegation” is not in the statute itself. The question is “simply whether it is a disclosure of information. If it is also an allegation, that is nothing to the point” [30]. It will be a matter for the tribunal whether there is sufficient information to satisfy s43B ERA. The Court of Appeal endorsed this approach in Kilraine [2018] IRLR 846.

Several separate communications sent to different recipients may together amount to a protected disclosure where individually they would not (Norbrook Laboratories (GB) Ltd v Shaw [2014] ICR 540). Slade J held that “An earlier communication can be read together with a later one as ‘embedded’ in it, rendering the later communication a protected disclosure, even if taken on their own they would not fall within section 43B(1)(d)…Accordingly, two communications can, taken together, amount to a protected disclosure.”

It does not matter whether the person to whom the disclosure of information is made is already aware of that information (s.43L(3) ERA).

  1. Means

An individual is only protected from detriment or dismissal because of the act of disclosure; an individual will not have special protection if they are disciplined solely for the improper means used to investigate their suspicions (Bolton School v Evans [2006] EWCA Civ 1653, [2007] IRLR 140). Bolton School concerned a claim for constructive unfair dismissal in circumstances where the employee was disciplined after making a protected disclosure that the school’s IT system was insecure and then hacking into it to prove his point. The reason for the disciplinary action was held not to be the protected disclosure but the employee’s subsequent act of misconduct.

In Panayiotou v Kernaghan [2014] IRLR 500, the EAT held that the reason for mistreatment and dismissal was not Mr Panayiotou’s protected disclosure, but rather his efforts to rectify the perceived wrongs he had identified and his employer’s increasing difficulty in managing him as a result.

  1. Timing

A qualifying disclosure includes: (1) a disclosure made after the employment is terminated (Onyango v Berkeley Solicitors [2013] IRLR 338); and (2) a disclosure made by an individual when they were not employed by that employer (e.g. previous employment) (BP plc v Elstone [2010] IRLR 558).

  1. Acts of third parties

Disclosures can be made in relation to acts or failures by a third party, other than the employer (Hibbins v Hesters Way Neighbourhood Project [2009] IRLR 198)