What wrongdoing is covered by the Public Interest Disclosure Act 1998, section 43B

43B. - (1) In this Part a "qualifying disclosure" means any disclosure of information which, in the reasonable belief of the worker making the disclosure, is made in the public interest tends to show one or more of the following-

  • that a criminal offence has been committed, is being committed or is likely to be committed,
  • that a person has failed, is failing or is likely to fail to comply with any legal obligation to which he is subject,
  • that a miscarriage of justice has occurred, is occurring or is likely to occur,
  • that the health or safety of any individual has been, is being or is likely to be endangered,
  • that the environment has been, is being or is likely to be damaged, or
  • that information tending to show any matter falling within any one of the preceding paragraphs has been, is being or is likely to be deliberately concealed.

(2)  For the purposes of subsection (1), it is immaterial whether the relevant failure occurred, occurs or would occur in the United Kingdom or elsewhere, and whether the law applying to it is that of the United Kingdom or of any other country or territory.

(3)  A disclosure of information is not a qualifying disclosure if the person making the disclosure commits an offence by making it.

(4)  A disclosure of information in respect of which a claim to legal professional privilege (or, in Scotland, to confidentiality as between client and professional legal adviser) could be maintained in legal proceedings is not a qualifying disclosure if it is made by a person to whom the information had been disclosed in the course of obtaining legal advice.

(5)  In this Part "the relevant failure", in relation to a qualifying disclosure, means the matter falling within paragraphs (a) to (f) of subsection (1).

Explanatory Note

If a disclosure of information has taken place, it is necessary to consider whether it is a “qualifying disclosure” within the meaning of s43B ERA. In summary, did the worker reasonably believe that the disclosure:

  • was made in the “public interest”; and
  • tended to show one of the categories of failure in s43B(1) ERA?

Did the claimant have a “reasonable” belief?

The worker need only have a “reasonable belief” in respect of the above matters.  It is not necessary for the information disclosed to actually be true.  For example, in Darnton v University of Surrey [2003] IRLR 133, the EAT observed that a qualifying disclosure might relate to what a worker had seen or heard or what had been reported to him by others.  Similarly, if perceived malpractice does not actually involve a breach of a legal obligation, the disclosure would still qualify if the worker reasonably believed it did.  In considering whether a particular claimant’s belief was a reasonable one, their individual characteristics should taken into account: see Korashi v Abertawe Bro Morgannwg University Local Health Board [2012] IRLR 4.

The public interest requirement

Section 17 of the Enterprise and Regulatory Reform Act 2013 (ERRA) inserted a requirement that the person making the disclosure must reasonably believe that it is made in the public interest.

In Chesterton Global Ltd v Nurmohamed [2017] EWCA Civ 979, [2018] 1 All ER 947, the claimant was dismissed after making three disclosures about alleged financial irregularities in his employer’s business, which had an effect on his earnings and those of about 100 other employees across several branches. The Court of Appeal made clear that there is not a “bright line” distinction between personal and public interest. In a case of mixed interests, it is for the tribunal to rule as a matter of fact as to whether there was sufficient public interest to qualify under the legislation (see [36]-[37]). Underhill LJ identified four relevant factors: (1) the numbers in the group whose interests the disclosure served; (2) the nature of the interests affected and the extent to which they are affected by the wrongdoing disclosed; (3) the nature of the wrongdoing disclosed; and (4) the identity of the alleged wrongdoer.  On the facts of Chesterton, the tribunal had reached a permissible conclusion, given that: (1) it was not just a question of numbers (though these were high); (2) the wrongdoing was deliberate; (3) the wrongdoing concerned falsification of accounts which could have fed into statutory accounts; and (4) the employer was a national estate agent and a major player in the London property market.

In Parsons v Airplus International Ltd UKEAT/0111/17 (13 October 2017, unreported), the EAT held that where the claimant made a series of allegations that in principle could have been protected disclosures but in fact were made as part of a disciplinary dispute with the employer which eventually led to her dismissal for other reasons, the tribunal was entitled to rule that they were made only in her self-interest.  The judgment contains two interesting observations: (1) the fact that a claimant could have believed in a public interest element is not sufficient; and (2) a case of whistleblowing dismissal is not made out simply by a coincidence of timing between the making of disclosures and termination.

The categories of failure specified in in s43B(1) ERA

As a general comment, in order for a disclosure of information to come within the definition of a qualifying disclosure, it matters not whether the perceived malpractice was past, present or prospective.  Nor does it matter whether the concern related to particular conduct or to a state of affairs. In this context, the term “likely” to be committed / occur has been interpreted to mean that it is probable or more probable than not that the employer will fail to comply with the relevant legal obligation: Kraus v Penna plc [2004] IRLR 260 EAT.

There is scope for considerable overlap between the six categories listed in s43B(1) ERA. They are, however, addressed in turn.

  • Criminal offences: this is self-explanatory.
  • Failure to comply with a legal obligation: this includes a breach of any statutory requirement; contractual obligation; common law obligation (e.g. negligence, nuisance, defamation); or an administrative law requirement. Examples from tribunal cases include a breach of a duty of care owed to a resident in a care home (Chubb v First Care Partnership) and a breach of consumer rights (Staples v Royal Sun Alliance).  The word “legal” must be given its natural meaning, with the result that the fact that the individual making the disclosure thought that the employer’s actions were morally wrong, professionally wrong or contrary to its own internal rules may not be sufficient (Eiger Securities LLP v Korshunova [2017] IRLR 115, EAT).
  • Miscarriage of justice: this includes matters likely to lead to a wrongful conviction, such as reliance on unsound forensic techniques, failure to disclose evidence to the defence, or perjury (though this would come both under this heading and that covering crimes).
  • Health and safety risks: this encompasses risks to any individual – i.e. whether they are a worker of the employer or not. As such, this provision includes risks to patients in a hospital, passengers on a train, children in care, consumers of electrical products or customers in a restaurant.  It should be noted that the pre-existing protections in the ERA (ss.44 and 100 ERA) against victimisation for raising health and safety concerns remain in force.
  • Cover ups’: this category provides that qualifying disclosures include information not only about the substantive malpractice, but information which tends to show the deliberate concealment of information about For example, a concern that a care plan had been altered, as regards the drugs dispensed in an old people’s home, came under this head in Chubb v First Care Partnership.

 Territorial application (s43B(2) ERA)

It does not matter whether the malpractice in question occurs in the UK or elsewhere, or under the law of the UK or any other another country or territory.  For example, in Bhatia v Sterlite Industries, the disclosures concerned alleged breaches of Australian and US listing rules.

In Bamieh v EULEX Kosovo UKEAT/0268/16 (19 January 2018, unreported), the claimant was an employee of the Foreign and Commonwealth Office, seconded to work for EULEX in Kosovo. She brought claims for unfair dismissal and whistleblowing detriment against the FCO, EULEX and two named EULEX staff.  In the claim for whistleblowing detriment, the claimant relied on the extension of liability in s47B(1A), (1B), which covers detriment by a fellow worker. There was a dispute as to whether the tribunal had jurisdiction to determine the claims based on alleged detrimental acts of the claimant’s managers in Kosovo. The EAT held that the question “required an assessment of the sufficiency of the connections between each individual Respondent and Great Britain… by analogy with the approach required to be adopted where the employer is the only respondent.”  On the facts, the tribunal was entitled to conclude that there was such a connection (and the detriment claims could therefore proceed). 

The commission an offence by the whistleblower (s43B(3) ERA)

Where a disclosure of information is itself a criminal offence (e.g. entailing a breach of the Official Secrets Act), it will not qualify.

Legal professional privilege (s43B(4) ERA)

In broad terms, this means that if a disclosure is made in breach of legal professional privilege, it will not be protected.   This provision needs to be considered along with s.43D ERA below.

DEFINITIONS

“disclosure” : s.43L(3)

“worker” : s.43K(1)