Is a public interest test for workplace whistleblowing
Transcription
Is a public interest test for workplace whistleblowing
International Journal of Law and Management Is a public interest test for workplace whistleblowing in society’s interest? David Lewis Article information: Downloaded by Universitas Muhammadiyah Malang At 20:56 27 March 2015 (PT) To cite this document: David Lewis , (2015),"Is a public interest test for workplace whistleblowing in society’s interest?", International Journal of Law and Management, Vol. 57 Iss 2 pp. 141 - 158 Permanent link to this document: http://dx.doi.org/10.1108/IJLMA-10-2014-0056 Downloaded on: 27 March 2015, At: 20:56 (PT) References: this document contains references to 19 other documents. 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David Lewis Workplace whistleblowing 141 Law School, Middlesex University, London, UK Downloaded by Universitas Muhammadiyah Malang At 20:56 27 March 2015 (PT) Received 8 October 2014 Revised 8 October 2014 Accepted 8 October 2014 Abstract Purpose – The aim of the paper is to consider the efficacy of requiring a public interest test to be satisfied before protection is afforded to workers who blow the whistle under Part IVA of the Employment Rights Act 1996 (ERA 1996). Design/methodology/approach – Not all definitions of whistleblowing require there to be a public interest in the disclosure of information. To illustrate how the expression “public interest” has been used in this context, the common law defence to an action for breach of confidence is outlined. The paper then explains how the concept of “public interest whistleblowing” evolved in other jurisdictions. It also examines the jurisprudence of the European Court of Human Rights to see if it helps us to apply the public interest test. Finally, this test is considered in the context of UK legislation. Findings – Several sources of uncertainty are identified. These include the fact that personal and public interest matters may be intertwined and that an organization may encourage the internal reporting of concerns about wrongdoing that do not have a public dimension to further its private interests. One obvious result of uncertainty is that those who are not legally required to report wrongdoing may choose not to do so and society may be denied important information; for example, about serious health and safety risks or financial scandals. Originality/value – It is suggested that the public interest test should be removed from Part IVA ERA 1996. However, this test is likely to remain for a while, so nine recommendations about how it should be interpreted are made. Keywords Interest, Whistleblowing, Public Paper type Research paper Introduction A prime attraction of using the words “public interest” in the context of legal rights or defences is that their meaning can be determined by judges in a variety of factual situations. Equally, a major disadvantage for potential litigants is that they may not know in advance with sufficient certainty how the term will be applied. Case law may provide some indication as to when a public interest test is likely to be satisfied, but it may not be authoritative enough to enable advisers to determine whether a particular claim is likely to succeed or fail. What follows is written on the premise that most people do not have a statutory or contractual duty to disclose wrongdoing (Lewis, 2011), and thus need to be encouraged to do so. This could be achieved by employers having a policy that invites the reporting of concerns, a procedure that facilitates this, together with undertakings that whistleblowers will be protected against victimization if they act honestly. Unfortunately, UK legislation does not oblige employers to have such arrangements in place and, despite the fact that these are desirable as a matter of self-interest[1], many do not do so. Where detailed policies and International Journal of Law and Management Vol. 57 No. 2, 2015 pp. 141-158 © Emerald Group Publishing Limited 1754-243X DOI 10.1108/IJLMA-10-2014-0056 IJLMA 57,2 Downloaded by Universitas Muhammadiyah Malang At 20:56 27 March 2015 (PT) 142 procedures do exist, they often require whistleblowers to act in good faith and/or not knowingly provide false information but make no mention of the public interest. This is hardly surprising given that, even in the public sector, information about wrongdoing is being sought primarily to serve the employer’s interest in efficiency, good governance, etc. Indeed, in the private sector, shareholders may well point out that, apart from the need to abide by the law, the public interest is of no relevance to them unless serving it has the effect of maintaining or increasing the value of their stock. Thus, the question arises as to the efficacy of requiring a public interest test to be satisfied before protection is afforded to workers under Part IVA ERA 1996. If such a test deters some disclosures of serious wrongdoing, it might be argued that it is in society’s interest that it is removed. To illustrate how the expression “public interest” has been used in the context of whistleblowing, we will start by outlining the common law defence to an action for breach of confidence. Next, we explain how the concept of “public interest whistleblowing” evolved in Australia and how it manifested itself in legislation in that country and elsewhere. We then examine the jurisprudence of the European Court of Human Rights (ECHR) to see if it helps us to apply the public interest test. Finally, we consider this test in the context of UK statutes dealing with both the concealment and disclosure of information. We conclude by arguing that to create more certainty about when statutory protection will be afforded, the public interest test should be removed from Part IVA Employment Rights Act 1996. At the very least, it should not be a condition for protecting those who disclose information internally or to regulators. Realistically, however, the public interest test is likely to remain in place for a while, so it is recommended that a code of practice or guidance document is produced and suggestions are made about some of the issues that should be dealt with. Breach of confidentiality at common law and the impact of the Human Rights Act 1998 Since Initial Services v. Putterill [1968] 1 QB 396, the law has allowed an exception to the principle of non-disclosure of confidential information where there is “any misconduct of such a nature that it ought in the public interest to be disclosed to others”. Thus, in Lion Laboratories Ltd v. Evans [1985] QB 526, two employees gave a national newspaper copies of internal documents doubting the reliability of the breathalysers manufactured by their employer. The company sought an injunction to prevent publication of the information on the grounds of breach of confidence. However, the action failed because the employees were found to have “just cause or excuse” for disclosure. Subsequently, in Re a Company’s Application [1989] IRLR 477, the High Court refused to grant an injunction preventing an employee in the financial services sector from disclosing confidential information about his company to a regulatory body, notwithstanding that the disclosure might be motivated by malice. Justice Scott held that an employee’s duty of confidence did not prevent him or her disclosing to regulatory authorities matters, which it was within the province of those authorities to investigate. In essence, the public interest was used by the common law as a shield in actions for breach of contract. Apart from the Official Secrets Act, which does not allow a public interest defence[2], it was clear that, irrespective of a person’s motive, external disclosures of serious wrongdoing would not constitute a breach of confidence if they were made to an appropriate regulatory body. However, there was uncertainty about what amounted to serious wrongdoing and when disclosures could be made to the media. Indeed, in 1990, Gunmow described the situation as follows: “the so-called “public interest” defence is not so much a rule of law as an invitation to judicial idiosyncrasy[3]”. Today, the task of balancing a private interest in maintaining confidentiality against the public interest in the disclosure of wrongdoing is undertaken in the context of the Human Rights Act 1998 (HRA 1998). According to Section 3(1) HRA 1998: Downloaded by Universitas Muhammadiyah Malang At 20:56 27 March 2015 (PT) So far as it is possible to do so, primary legislation and subordinate legislation must be read and given effect in a way which is compatible with the Convention rights[4]’. In addition, Section 6 (1) makes it unlawful for tribunals and courts to “act in a way which is incompatible with a Convention right”. In the author’s view, these provisions require courts and tribunals to have freedom of speech as the starting point both in common law actions and in the assertion of statutory rights. Nevertheless, as we will see below, the notion of proportionality applied by the ECHR sheds little light on how the public interest test in Part IVA ERA 1996 might operate. These whistleblowing provisions originally gave workers a sword with which to claim compensation for detrimental treatment and the types of wrongdoing covered, and the appropriate recipients of concerns were specified. No additional public interest test had to be satisfied, although good faith was required[5]. However, the statute was amended in 2013 to incorporate a public interest test as a condition for protection and relegated good faith to a matter relevant only to the amount of compensation awarded[6]. Before examining Part IVA ERA 1996 in detail, we will discuss the emergence of the concept of “public interest whistleblowing” in overseas legislation and the principle of proportionality enshrined in the European Convention on Human Rights. The evolution of the concept of “public interest whistleblowing” In 1972, the late Ralph Nader defined whistleblowing as: […] an act of a man or a woman who in believing the public interest overrides the organization he serves, and publicly blows the whistle if the organization is involved in corrupt, illegal, fraudulent or harmful activity. Having received a variety of submissions, the Australian Senate Select Committee on Public Interest Whistleblowing settled on the following definition: […] the whistleblower is a concerned citizen, totally or predominantly motivated by notions of public interest, who initiates of his or her own free will, an open disclosure about significant wrongdoing directly perceived in a particular occupational role, to a person or agency capable of investigating the complaint and facilitating the correction of wrongdoing[7]. The use of the term “public interest whistleblowing” in Australia is hardly surprising because, apart from South Australia, all the relevant state and federal legislation applies only to the public sector[8]. In 2005, the International Labour Organisation described whistleblowing as “the reporting by employees or former employees of illegal, irregular, dangerous or unethical practices by employers[9]”. In 2013, Transparency International adopted the following definition: Workplace whistleblowing 143 IJLMA 57,2 Downloaded by Universitas Muhammadiyah Malang At 20:56 27 March 2015 (PT) 144 […] the disclosure of information related to corrupt, illegal, fraudulent or hazardous activities (including perceived or potential wrongdoing) being committed in or by public or private sector organisations – which are of concern to or threaten the public interest - to individuals or entities believed to be able to effect action (Transparency International, 2013). More recently, the Council of Europe Recommendation on Protecting Whistleblowers defined a whistleblower as “any person who reports or discloses information on a threat or harm to the public interest in the context of their work-based relationship, whether private or public”. “Concerned individuals who sound an alarm in order to stop wrongdoings that place fellow human beings at risk”. The same document defines a public interest report or disclosure as “reporting or disclosing of information on acts and omissions that represent a threat or harm to the public interest[10]”. However, the definition most commonly used for research purposes is the following: […] the disclosure by organisation members (former or current) of illegal, immoral or illegitimate practices under the control of their employers, to persons or organisations that may be able to effect action (Near and Miceli, 1985). It can be seen that some of these definitions are broader than others (Lewis et al., 2014), but what is relevant for our purposes is that not all of them require there to be a public interest in disclosure. Given that Miceli and Near’s definition had been used widely by scholars, it seemed that the researchers on the Australian Whistling While They Work project were narrowing the scope of their enquiries in focusing only on public interest whistleblowing “in which the issues disclosed raise public interest matters in addition or as opposed to those that involve simply a personal or private complaint” (Brown, 2008). However, their report acknowledges that this distinction can be difficult to draw in practice because many allegations of wrongdoing involve a personal grievance and also matters of organizational or public integrity. For example, whether or not a worker realizes it, a personal grievance could be indicative of a larger breakdown in organizational procedures: “Some workplace grievances, particularly those involving management, can become so endemic and destructive that they also become a public interest issue” (Roberts et al., 2011). Similarly, a worker could be aware about a matter of serious public interest, but disclose it only after a personal grievance arises (whether or not related to the public interest matter). Thirdly, it was accepted that a worker could raise a matter of public interest but receive a response that gives rise to a personal grievance. The frequency with which public interest concerns are mixed with personal conflicts was confirmed by responses to the surveys conducted during the project: “In practice, reporters of wrongdoing do not make this distinction between grievances and public interest matters” (Roberts et al., 2011, p. 57). Thus the authors state: […] it is important that organizational systems recognize the degree to which personal and public interest matters are intertwined, otherwise issues of public interest can get overlooked and employees may be left subject to reprisals simply because personal interests are also involved (Brown, 2008). This recognition of the interplay between public and personal interests at the workplace is also crucial in the UK context. Thus, in opposing an amendment to the Enterprise and Regulatory Reform Bill 2012, which would have prevented breaches of contracts of employment from amounting to a qualifying disclosure under Section 43B ERA 1996, a Minister stated: Downloaded by Universitas Muhammadiyah Malang At 20:56 27 March 2015 (PT) Therefore there is no need to disallow claims based on an individual’s contract, as suggested in the amendment. Indeed, although our aim is to prevent the opportunistic use of breaches of an individual’s contract that are of a personal nature, there are also likely to be instances where a worker should be able to rely on breaches of his own contract where those engage wider public interest issues. In other words, in a worker’s complaint about a breach of their contract, the breach in itself might have wider public interest implications[11]. Workplace whistleblowing We discuss the current legislation in the UK below, but before doing so, we will outline how the public interest has manifested itself in some other jurisdictions. 145 The meaning of public interest in Australian, New Zealand and Norwegian whistleblowing legislation As mentioned above, with the exception of one state, Australian whistleblowing legislation only covers the public sector. Early statutes equated public interest disclosures with the reporting of limited types of improper conduct by public officers to a narrow range of appropriate recipients. Subsequently, the types of reportable conduct have been extended as have the range of appropriate recipients and the acceptable methods of disclosure. Some states do not mention the public interest as such but focus on the conduct of public officers and bodies, for example, Tasmania[12]. A more recent example is Victoria’s Protected Disclosures Act 2012, Section 1, of which states that its purposes are: […] (a) to encourage and facilitate disclosures of (i) improper conduct by public officers, public bodies and other persons; and (ii) detrimental action taken in reprisal for a person making a disclosure under this Act. By way of contrast, several Australian states expressly refer to the public interest. For example, South Australia[13], New South Wales[14] and Queensland[15]. More recently, the Australian Capital Territory’s Public Interest Disclosure Act 2012 states that it is “an Act to facilitate public interest disclosures and protect people making those disclosures, and for other purposes” and Section 7 spells out the meaning of public interest disclosure[16]. Similarly, Section 26 of the Federal Public Interest Disclosure Act 2013, which describes itself as “an Act to facilitate disclosure and investigation of wrongdoing and maladministration in the Commonwealth public sector, and for other purposes’ defines a public interest disclosure[17]”. Finally, a variation on this theme is seen in Western Australia’s Public Interest Disclosure Act 2003 and the Northern Territory’s Public Interest Disclosure Act 2008, which are built around the notion of “public interest information[18]”. Unlike most of the Australian legislation, New Zealand’s Protected Disclosures Act 2000 aims to promote the public interest by facilitating disclosures of serious wrongdoing in both the public and private sectors[19]. In Norway, various duties to notify are imposed by Section 2(3) of the Work Environment Act 2005 and Section 2(4) gives employees in the public and private sectors “a right to notify concerning censurable conditions at the undertaking”. No mention is made of the public interest other than as a consideration to be taken into account in assessing the validity of an external disclosure. Does ECHR jurisprudence help us to interpret the meaning of public interest whistleblowing? Freedom of speech is intrinsically valuable as a mode of self-fulfilment, but it is also instrumentally important. Information and ideas are critical to the creation of citizens who are capable of participating, and the health of democratic societies depend on this IJLMA 57,2 Downloaded by Universitas Muhammadiyah Malang At 20:56 27 March 2015 (PT) 146 being achieved (Marshall. 1968). Indeed a person’s ability to freely report suspicions may deter others from engaging in wrongdoing. Thus, whistleblowing can be regarded as an aspect of citizenship and promoting and protecting it is a public good. On this basis, we can see why Article 10 of the European Convention on Human Rights applies to all citizens and might wonder why the protection of whistleblowers in the UK is confined to workers[20]. Article 10, which applies to both the public and private sectors, states that: • Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers […]. • The exercise of these freedoms, as it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties, as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or the rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary[21]. To assess the potential impact of the public interest test in the UK’s whistleblowing legislation, it seems appropriate to examine how the ECHR has interpreted Article 10. However, it should be noted that the words “public interest” are not used in formulating the right. Nevertheless, the public interest has been referred to in the ECHR case law as a factor relevant to determining whether a restriction was “necessary in a democratic society”. In Stoll v. Switzerland [2007] 47 EHRR 1270, the ECHR was not persuaded that the disclosure of aspects of the strategy to be adopted by the Swiss Government in the negotiations concerning the assets of Holocaust victims and Switzerland’s role in the Second World War was prejudicing interests that were so important that they outweighed freedom of expression in a democratic society. It is important to note here that the public interest considerations were taken into account in the context of press freedom, which was regarded as being “too fundamental a right to be made subservient as a matter of principle to the interests of the state”. As the ECHR has acknowledged that exceptions to freedom of expression must be strictly construed, we would expect that it would take a robust approach in whistleblowing cases. In Guja v. Moldova [2008] ECHR 14277/04, an employee of the Prosecutor General’s office was sacked for leaking official letters to the press demonstrating political interference in ongoing investigations. The ECHR accepted that the defendant had the legitimate aim of preventing the disclosure of information received in confidence, and thus had to consider whether there was a proportionate relationship between the interference suffered and the aim pursued. In discussing the general principles applicable, reference was made to the duty of loyalty, reserve and discretion owed by an employee to his or her employer. This will almost inevitably be breached where a whistleblower makes an external disclosure. Interestingly, no mention was made of loyalties that might be owed to others, for example, a family, work colleagues, friends or society generally (Lewis, 2011). However, it was accepted that it will be particularly important to afford protection where the individual is the only person or one of a small group aware of what is happening at work. In assessing proportionality, the duty of loyalty was used as the basis for arguing that public disclosures should be a last resort but the ECHR thought that attention should be paid to a number of other factors. First, “the public interest involved in the disclosed information”. Second is the authenticity of the information: “any person who chooses to disclose information must carefully verify, to the extent permitted by the circumstances, that it is accurate and reliable”. Third, the motives behind the employee’s actions are relevant: Downloaded by Universitas Muhammadiyah Malang At 20:56 27 March 2015 (PT) […] it is important to establish that the individual acted in good faith and in the belief that the information was true, that it was in the public interest to disclose it and that no other, more discreet means of remedying the wrongdoing was available to him or her. Finally, the ECHR must determine whether any damage suffered outweighed the public interest in having the information revealed. In this respect, the subject matter of the disclosure and the identity of the defendant may be relevant. In the subsequent case of Heinisch v. Germany [2011] IRLR 922, the applicant was dismissed after heavily criticizing and filing a criminal complaint against her state-owned employer (which provided services for the elderly), alleging deficiencies in care resulting from staff shortages. The ECHR accepted that the interference with the right to freedom of expression was “prescribed by law” and there was no dispute that the interference pursued the legitimate aim of protecting the reputation and rights of others, i.e. the business interests of her employer. Thus, what had to be decided was whether there was a proportionate relationship between the interference and the aim pursued. The ECHR reiterated that the nature and extent of the employees’ duty of loyalty impacted on the balancing of the conflicting rights and interests of the parties. However, it was pointed out that if the employer fails to deal with an illegal practice brought to its attention, an employee is no longer bound by this duty. Another dimension in this case was that a failure to report deficiencies in the care provided would have rendered Heinisch liable to criminal proceedings. Although the ECHR confirmed that “there is an interest in protecting the commercial success and viability of companies”, it nevertheless concluded that: […] the public interest in having information about shortcomings in the provision of institutional care for the elderly by a State-owned company is so important in a democratic society that it outweighs the interest in protecting the latter’s business reputation and interests. Unfortunately the factors regarded by the ECHR as being relevant to the defence that restrictions on freedom of speech are “necessary in a democratic society” do not shed light on the meaning of “public interest”. Indeed, the public interest is itself treated as a factor! More broadly, there are good reasons for not relying on most of the matters discussed by the ECHR in relation to the test of proportionality. First, it can be argued that, from an ethical perspective, loyalty is not owed solely to an employer[22] and that the legal obligation not to disclose information is removed if the employer is aware of serious wrongdoing but ignores it[23]. Second, in relation to what the ECHR refers to as “authenticity”, it is the function of whistleblowers to report honest suspicions about wrongdoing and they should not be required to obtain evidence before reporting it. It is the task of the recipient to investigate[24] and check whether the material disclosed is accurate and reliable. Third, many believe that the motives of a whistleblower are irrelevant and that it is in the public interest that attention focuses solely on the message Workplace whistleblowing 147 IJLMA 57,2 being conveyed rather than whether it was disclosed in good or bad faith (Lewis, 2008). The subject matter of the disclosure and to whom it is made have also been identified by the ECHR as relevant factors. However, these are both dealt with as separate issues in Part IVA ERA, and thus, at least in theory, should not be used again as part of the public interest test. Downloaded by Universitas Muhammadiyah Malang At 20:56 27 March 2015 (PT) 148 Learning from the public interest test in data protection and freedom of information legislation Data Protection Act 1998 (DPA 1998) Unlike Part IVA ERA 1996, which focuses on disclosures of information, the DPA 1998 provides protection to individuals in relation to the processing and movement of personal data. It is relevant here as it deals with privacy issues and their relationship with freedom of expression. Under the DPA 1998, the media will be treated as data controllers and Section 32(1) provides that all the Data Principles (except Principle 7) are disapplied if: […] (a) the processing is undertaken with a view to the publication by any person of any journalistic, literary or artistic material, (b) the data controller reasonably believes that, having regard in particular to the special importance of the public interest in freedom of expression, publication would be in the public interest […]. Section 32(3) goes on to state that: In considering […] whether the belief of a data controller that publication would be in the public interest was or is a reasonable one, regard may be had to his compliance with any code of practice which – (a) is relevant to the publication in question, and (b) is designated by the Secretary of State. As this test of reasonable belief in the public interest is the same as that contained in Section 43B ERA 1996 in relation to qualifying disclosures, it seems appropriate to see if such codes provide meaningful guidance as to how a reasonable belief might be demonstrated. To date, five codes have been designated in the Schedule to the Data Protection (Designated Codes of Practice) (No. 2) Order 2000[25]. Some of these are very detailed and focus on obvious topics like protecting minors, crime, religion, elections, privacy and impartiality. The OFCOM (formerly Broadcasting Standards Commission) Code contains both principles and rules, and the public interest is mentioned in relation to the payment to criminals for programme contributions, withholding information to contributors, unjustified public ridicule or personal distress. In relation to infringements of privacy, Rule 8.1 states that “Any infringement of privacy in programmes, or in connection with obtaining material included in programmes, must be warranted” and Rule 8.13 provides that surreptitious filming or recording is only warranted “if there is prima facie evidence of a story in the public interest”. The Press Complaints Commission Editors’ Code ends with a note about the public interest which includes the following: Whenever the public interest is invoked, the PCC will require editors to demonstrate fully that they reasonably believed that publication, or journalistic activity undertaken with a view to publication, would be in the public interest and how, and with whom, that was established at the time. Downloaded by Universitas Muhammadiyah Malang At 20:56 27 March 2015 (PT) This raises an interesting question in relation to section 43B ERA 1996. If the burden of establishing a reasonable belief is on a worker asserting the right not to suffer a detriment, should an employment tribunal ask how such belief materialized and whether the worker sought the views of others? Clearly, a belief can only be reasonable if there are some grounds for it, but the requirement to get confirmation from others might penalize those whistleblowers who choose to act alone to safeguard themselves and others. Finally, it should be noted that the consequences of uncertainty in relation to the application of Section 32 DPA 1998 is not that data cannot be processed but merely that journalists are subject to the Data Principles. By way of contrast, potential whistleblowers who are not confident that they satisfy the public interest test may choose to remain silent rather than risk making an unprotected disclosure. Freedom of Information Act 2000 The Freedom of Information Act 2000 (FOI 2000) focuses on access to information rather than disclosure and is relevant here because Article 10 of the European Convention on Human Rights deals with both the receipt and imparting of information. By allowing greater access to information about how government operates, the FOI 2000 aims to increase accountability and transparency. There is a strong connection with public interest disclosures because, where it is perceived that information is being unreasonably withheld, whistleblowers can more easily justify their activities. In exempting authorities from complying with duties to confirm or deny and to communicate information, a public interest test is used in Section 2(1)(b) and Section 2(2)(b) FOI 2000[26]. An applicant can appeal to the Information Commissioner against a decision to refuse access to information and this person has prepared guidance to the interpretation of the public interest test. We now consider aspects of this document (Information Commissioner, 2013) that might shed some light on the operation of such a test in the context of whistleblowing. The Information Commissioner’s Office (ICO) guidance relates to qualified exemptions under the FOI 2000, i.e. the need for public authorities to weigh the public interest in maintaining an exemption against the public interest in disclosure[27]. Because this statute uses the word “outweighs”, when the public interest is equal on both sides the information must be released. There is no statutory presumption of public interest in section 43B ERA 1996, which raises the question of what employment tribunals should do if the scales are balanced. Given that the ERA 1996 is an employment protection measure and that Article 10 of the European Convention can have a bearing on its interpretation, it seems appropriate to give workers the benefit of the doubt if the reasonableness of their belief is questioned. A related issue is whether, in addition to the evidence presented by the parties, an employment tribunal can choose to take into account other arguments about where the public interest lies (Whistleblowing Commission, 2013, para 81)[28]. This would seem to be particularly appropriate where a worker is unrepresented. The ICO guidance emphasizes the general public interest in transparency and suggests that if there is a “plausible suspicion of wrongdoing on the part of the public authority, this may create a public interest in disclosure” (Whistleblowing Commission, 2013, p. 2). This raises the question as to whether in relation to Section 43B ERA 1996, it will be easier to establish a reasonable belief in the public interest if a disclosure is about the behaviour of a public body. I would argue that the qualities of transparency and Workplace whistleblowing 149 IJLMA 57,2 Downloaded by Universitas Muhammadiyah Malang At 20:56 27 March 2015 (PT) 150 accountability are of universal value in modern society. Although it may be particularly important in the public sector to promote understanding and involvement in the democratic process, these qualities are also vital to good governance and corporate social responsibility in the private sector. Perhaps, in recognition of the difficulties that would be experienced in drawing a meaningful line today, unlike FOI 2000, Part IVA applies equally to both sectors. We have shown above how public and private interests may be intertwined in the whistleblowing process. Thus, while it might be appropriate for the ICO to suggest that public interest means public good and not the private interests of a requester under FOI, such an approach is not appropriate under Section 43B ERA 1996. Unsurprisingly, the ICO guidance discusses the types of public interest issues and the relevance of a requester’s motive. However, both the subject matter of disclosures and the issue of good faith are dealt with explicitly in Part IVA, so the question arises as to whether they should also have a bearing on the reasonableness of a worker’s belief in the public interest. Even if the answer is in the negative, it would be naive to think that the type of alleged wrongdoing and the perceived motives of a worker might not influence an employment tribunal’s assessment. Although good faith is now only relevant to compensation, this would not necessarily prevent an employer alluding to an improper motive in arguing that the worker did not have a reasonable belief in the public interest. Equally, although the alleged wrongdoing (“relevant failure”) may have been made to a designated recipient under Part IVA ERA 1996, an employer might suggest that the worker could not reasonably have believed that it was in the public interest to make such a broad disclosure. For example, it would be easy to assert that it is only in the public interest to report to the media as a last resort. In my opinion, such an argument would create too much uncertainty and would undermine the operation of Part IVA ERA 1996. Put simply, if the requirements for external disclosures under Sections 43G & H ERA 1996 are satisfied, the public interest test should not be used to argue that there was a more appropriate recipient. However, the fact that the worker is aware that a “relevant failure” has already been reported and is being investigated may well affect the reasonableness of the belief that the disclosure was in the public interest. Another factor that might contribute to the reasonableness of a belief is the grounds for it. Clearly, a worker must have some basis for suspecting a “relevant failure”, but is his or her case in relation to the public interest improved if he or she adduces independent and concrete evidence of wrongdoing or can show that information already in the public domain is misleading? More worrying is the argument that the worker should have realized that the content of the information was not particularly valuable and that this undermines the reasonableness of his or her belief in the public interest being served by its disclosure. Given that disclosures may be protected under Part IVA ERA 1996 even if they relate to “relevant failures” outside the UK, the public interest here cannot be confined to the UK. As the ICO observes: “the public interest test is about what is in the best interests of society in general, and this includes citizens of other countries” (Information Commissioner, 2013, p. 21). Finally, it goes without saying that the public interest test must be applied to the circumstances at the time the disclosure was made and that subsequent events cannot affect the reasonableness of the worker’s belief. Downloaded by Universitas Muhammadiyah Malang At 20:56 27 March 2015 (PT) The public interest test in part IVA Employment Rights Act 1996[29] When it was established in the early 1990s, the charity Public Concern at Work offered help and free legal advice to people who have “a concern that something seems to be seriously wrong, illegal or dangerous which threatens the public interest”. Thus, it is not entirely surprising that when Don Touhig M.P. introduced his Public Interest Disclosure Bill in the parliamentary session in 1995/1996 the words “public interest” were critical to the protection being afforded. Unashamedly, the common law defence was converted into a sword for obtaining compensation for detriments suffered[30]. What some commentators have found more difficult to understand is why the Public Interest Disclosure Act 1998, whose Long Title proclaims that it aims “to protect individuals who make certain disclosures of information in the public interest;” fails to mentions the words “public interest” thereafter. The obvious explanation is that this measure had all-party support and the consensus was that the common law defence was not an appropriate platform on which to build a new employment right. Thus, according to the original statutory provisions, the public interest was satisfied and protection was afforded when a worker made a qualifying disclosure in good faith[31] to a specified recipient. Clearly, the insertion of the public interest test in 2013 poses dangers to workers who think that this will be satisfied simply because they have raised a concern about serious wrongdoing through the appropriate channels. Indeed, the good practice adage “when in doubt report”, which featured so prominently in whistleblowing arrangements, must now be viewed in a different light. The current statutory formula “in the reasonable belief of the worker making the disclosure, is made in the public interest[32]” does not introduce a simple objective test – the question the employment tribunal has to determine is not “was the disclosure in the public interest?” It remains to be seen what allowance will be made for an individual’s personal circumstances. For example, could it be reasonable for an unsophisticated worker to believe that a disclosure was in the public interest because it was “of interest to the public”? To illustrate another problem caused by the statutory formula, we will take health and safety as an example. The fact that this is an important topic is underlined by the duty of employees to report concerns under Regulation 14 of the Management of Health and Safety Regulations 1999[33] and the special protection afforded by sections 44 & 100 ERA 1996 in relation to detriments and unfair dismissal[34]. These sections offer protection where it was not reasonably practicable to raise the matter with a safety representative or safety committee and the employee “brought to his employer’s attention, by reasonable means, circumstances connected with his work which he reasonably believed were harmful or potentially harmful to health or safety”. What constitutes “reasonable means” might not be particularly contentious, especially if the employer has provided a reporting procedure. However, what amounts to a reasonable belief in potential harm to health and safety could be more difficult. For example, do employees generally appreciate that this could include bullying and harassment? In this respect, the original version of Section 43B ERA 1996 provided a useful supplement to section 100 ERA 1996. If bullying and harassment was not perceived as a health and safety issue under section 43B(1)(d)ERA 1996, it could be argued by workers[35] that there was a failure to comply with a legal obligation under Section 43B(1)(b)ERA 1996, i.e. a breach of an implied term in the contract of employment[36]. Today, however, a potential whistleblower also has to decide whether or not there is a Workplace whistleblowing 151 IJLMA 57,2 Downloaded by Universitas Muhammadiyah Malang At 20:56 27 March 2015 (PT) 152 public interest in the disclosure of what others might view as a personal or minor matter. When can it be said that there is a public interest in knowing that there is bullying and harassment at a particular workplace? For example, does it depend on the nature or frequency of the bullying/harassment, whether it affects a few individuals or permeates the whole organization or whether it occurs in a large public sector body or a small private sector firm?[37] Conclusion We have noted above that not all definitions of whistleblowing require there to be a public interest in the disclosure of information. We have also seen how the concept of public interest has been used in the common law, statutory provisions and by international courts and organizations. The one certainty that emerges is that there is no consensus about how the public interest should be determined. It follows that that many potential whistleblowers will not be confident that they will get statutory protection from employment tribunals and the courts under Part IVA ERA 1996. In addition to the issue of whether a reasonable belief needs to be proved by the worker or disproved by the employer, we have identified several other sources of uncertainty. These include the fact that personal and public interest matters may be intertwined and that an organization may encourage the internal reporting of concerns about wrongdoing that do not have a public dimension to further its private interests. In relation to bullying or harassment, for example, we have asserted that there may well be a public interest in receiving information but workers might fail to make a disclosure because they are unsure about whether their belief will be regarded as reasonable. Perhaps more disturbing would be if workers with a legal or professional duty to report had doubts about whether they would satisfy a public interest test. Fulfilling a statutory duty[38] to disclosure information must be in the public interest but does the performance of a contractual obligation necessarily satisfy this test? It may well be insufficient for workers to argue that they reasonably believed that there was a public interest in the performance of their contractual duty. At this stage, it is worth noting that employees with two years of continuous service who do not satisfy the public interest test contained in Section 43B ERA 1996 may still succeed in a claim for “ordinary” unfair dismissal. Indeed, employers will find it difficult to argue that it was reasonable in all the circumstances to dismiss an employee for fulfilling a contractual duty to report wrongdoing, especially if a whistleblowing procedure had been followed. Compensation for “ordinary” unfair dismissal is now capped under Section 124(1ZA) ERA 1996, so it might be argued that a failure to compensate fully for both pecuniary and non-pecuniary damage amounts to a breach of the right to an effective remedy under Article 13 of the European Convention on Human Rights. One obvious result of uncertainty is that those who are not legally required to report wrongdoing may choose not to do so and society may be denied important information, for example, about serious health and safety risks or financial scandals. In these circumstances, it is suggested that the public interest test should be removed from Part IVA ERA 1996 on the grounds that, without it, the legislation is likely to encourage more reporting and afford better protection. If the test remains, it is argued that it is both unnecessary and potentially confusing to apply it to concerns that are raised inside the organization, especially where an employer’s policy does not require a public interest test to be satisfied. It is submitted that the criteria to be used for determining the public Downloaded by Universitas Muhammadiyah Malang At 20:56 27 March 2015 (PT) interest in this context should be agreed by Parliament. Ideally, this would follow extensive consultation with employers and trade unions and the results could be inserted into the legislation. Alternatively, criteria could be embodied in a statutory code of practice that would be taken into account by tribunals and courts in whistleblowing cases[39]. Least desirable, but better than the current vacuum, would be a guidance document. Whatever source is used, it should address the issues that both bolster and potentially undermine the reasonableness of a belief. Recommendations Perhaps the first matter to be dealt with in any guidance document should be the burden of proof. In the light of both Article 10 of the European Convention on Human Rights and Article 11 of the European Union (EU) Charter of Fundamental Rights, it should be stated that employers must demonstrate that the worker did not have a reasonable belief that a disclosure was in the public interest and if the tribunal has doubts about where the balance lies, the applicant should get the benefit. Second, it can be made clear that reasonableness will be assessed at the time of disclosure and that exercise will not be affected by subsequent events[40]. Third, it must be acknowledged that public and private interests are intertwined and that the statutory test applies to both public and private sector wrongdoing. Fourth, it can be asserted that fulfilling a statutory duty to disclose information must be in the public interest but the performance of a contractual obligation will not necessarily be so. Fifth, in relation to the evidence of a “relevance failure”, tribunals should be positively disposed if the worker had sought advice from others (for example, a lawyer or trade union) about the reasonableness of a belief. However, an adverse inference should not be made where applicants chose to act on their own to safeguard themselves or others. Sixth, a worker’s knowledge that the wrongdoing had already been reported and was being investigated might undermine the reasonableness of a belief in the public interest[41]. Conversely, evidence that information already in the public domain is untrue or misleading may assist an applicant in this respect. Seventh, it is appropriate to indicate that, because of the extra-territorial reach of Part IVA ERA 1996, the public interest in this context may embrace the interests of non-UK citizens. Eighth, it seems appropriate to state that tribunals will not confine themselves to the evidence adduced by the parties in this respect, especially where there is no representation. Finally, it should be noted that, because the type of wrongdoing, the appropriateness of the recipient of a disclosure and the question of good faith[42] are hurdles to be overcome elsewhere in Part IVA ERA 1996, they should not also be considered as factors affecting the reasonableness of a belief in the public interest. Similarly, the seriousness of a relevant failure is expressly mentioned as a factor to be taken into account in relation to disclosures under Sections 43G & 43H ERA 1996. However, it seems likely that tribunals will be urged to take this into account as affecting the public interest test even in relation to reporting internally or to prescribed persons. Notes 1. Workers who do not use an employer procedure might be regarded as behaving unreasonably for the purposes of Sections 43C-43H Employment Rights Act 1996 (ERA 1996). See Lewis (2008). 2. See R v. Shayler [2003] 1 AC 247. Workplace whistleblowing 153 IJLMA 57,2 154 3. SK & F v. Department of Community Services [1990] FSR 617. 4. Section 2(1) HRA 1998 states that: “A court or tribunal determining a question which has arisen in connection with a Convention right must take into account any – (a) judgment, decision, declaration or advisory opinion of the European Court of Human Rights, (b) opinion of the Commission given in a report adopted under Article 31 of the Convention, (c) decision of the Commission in connection with Article 26 or 27(2) of the Convention, or (d) decision of the Committee of Ministers taken under Article 46 of the Convention, whenever made or given, so far as, in the opinion of the court or tribunal, it is relevant to the proceedings in which that question has arisen”. Downloaded by Universitas Muhammadiyah Malang At 20:56 27 March 2015 (PT) 5. With the exception of Section 43D ERA 1996. 6. Section 123 (6A) ERA 1996 was inserted by the Enterprise and Regulatory Reform Act 2013. 7. In the public interest. (AGPS, Canberra, 1993) para 2.2. 8. There are constitutional constraints on Australian federal legislation regulating the private sector. 9. International Labour Organisation Thesaurus (2005). 10. Recommendation CM/Rec (2014) 7 of the Committee of Ministers to member States on the protection of whistleblowers (Adopted by the Committee of Ministers on 30 April 2014). 11. Norman Lamb M.P. Enterprise and Regulatory Reform Bill Deb, 3 July 2012, c388 Hansard. 12. Public Interest Disclosures Act 2002. 13. Whistleblower Protection Act 1993 Section 3. 14. Public Interest Disclosures Act 1994 (as amended in 2011). 15. Public Interest Disclosure Act 2010. 16. “(1) For the purposes of this Act, a public interest disclosure – (a) is a disclosure of information by a person about disclosable conduct that – (i) the person honestly believes on reasonable grounds tends to show disclosable conduct; or (ii) tends to show disclosable conduct regardless of whether the person honestly believes on reasonable grounds the information tends to show the conduct; and (b) includes any assistance given by the discloser during an investigation of the information mentioned in paragraph (a).” According to Section 8, disclosable conduct is any of the following: (a) conduct of a person that could, if proved – (i) be a criminal offence against a law in force in the ACT; or (ii) give reasonable grounds for disciplinary action against the person; (b) action of a public sector entity or public official for a public sector entity that is any of the following: (i) maladministration that adversely affects a person’s interests in a substantial and specific way; (ii) a substantial misuse of public funds; (iii) a substantial and specific danger to public health or safety; (iv) a substantial and specific danger to the environment. 17. “(1) A disclosure of information is a public interest disclosure if: (a) the disclosure is made by a person (the discloser) who is, or has been, a public official; and (b) the recipient of the information is a person of the kind referred to in column 2 of an item of the following table; and (c) all the further requirements set out in column 3 of that item are met”. 18. “An Act to facilitate the disclosure of public interest information, to provide protection for those who make disclosures and for those the subject of disclosures, and, in consequence, to amend various Acts, and for related purposes”. 19. Section 5: “The purpose of this Act is to promote the public interest – (a) by facilitating the disclosure and investigation of matters of serious wrongdoing in or by an organisation; and (b) by protecting employees who, in accordance with this Act, make disclosures of information about serious wrongdoing in or by an organisation”. Workplace whistleblowing 20. Other countries protect “persons”, especially where the legislation covers the public sector only. Downloaded by Universitas Muhammadiyah Malang At 20:56 27 March 2015 (PT) 21. It is worth noting that Article 11 of the EU Charter of Fundamental Rights 2000 mirrors the right contained in Article 10 (1), but is not subject to the qualifications contained in Article 10(2). Following the Lisbon Treaty, this Charter acquired the status of an EU treaty in December 2009. 22. It could be argued that an employee is being loyal by putting pressure on the employer to deal with wrongdoing if otherwise the business might fail. See Leys and Vandekerckhove (2014). 23. A failure to take a report of alleged wrongdoing seriously or to deal with proven impropriety may constitute a breach of the implied term of trust and confidence which is inherent in all contracts of employment. If a concern about health or safety is raised there may also be a breach of the duty of care. 24. See Bolton School v. Evans [2007] IRLR 140. 25. SI 2000/1864. These are: (1) The code published by the Broadcasting Standards Commission under Section 107 of the Broadcasting Act 1996. (2) The code published by the Independent Television Commission under Section 7 of the Broadcasting Act 1990. (3) The Code of Practice published by the Press Complaints Commission. (4) The Producers’ Guidelines published by the British Broadcasting Corporation. (5) The code published by the Radio Authority under section 91 of the Broadcasting Act 1990. 26. Section 2(1): “Where any provision of Part II states that the duty to confirm or deny does not arise in relation to any information, the effect of the provision is that where either – (a) the provision confers absolute exemption, or (b) in all the circumstances of the case, the public interest in maintaining the exclusion of the duty to confirm or deny outweighs the public interest in disclosing whether the public authority holds the information, section 1(1) (a) does not apply. (2) In respect of any information which is exempt information by virtue of any provision of Part II, section 1(1) (b) does not apply if or to the extent that – (a) the information is exempt information by virtue of a provision conferring absolute exemption, or (b) in all the circumstances of the case, the public interest in maintaining the exemption outweighs the public interest in disclosing the information”. 27. Section 43B ERA 1996 does not require a balancing exercise. 28. Public Concern at Work’s Whistleblowing Commission asked the following question: “But what happens if the Tribunal concludes that it was in the public interest to make the disclosure of information but not for the reasons given by the worker? It is to be hoped that in those circumstances the Tribunal would still find the disclosure was protected”. 29. The Public Interest Disclosure Act 1998 inserted Part IVA into the Employment Rights Act 1996. 30. According to the Explanatory Notes “the disclosure must be one that a court would find lawful and justified in the public interest, in an action for breach of confidence. The public interest would have to be sufficient to outweigh the normal duty of confidentiality; this would exclude trivial complaints, or disclosures which were not genuinely in the public interest”. 155 IJLMA 57,2 31. Inevitably the words “good faith” were seized on by employers as a possible defence but ultimately the Court of Appeal put the burden on employers to show that the worker had acted in bad faith. This stance was applauded by many who were disturbed that attention was being focused on the messenger rather than the concern he or she was endeavouring to raise. 32. Section 43B ERA 1996. Downloaded by Universitas Muhammadiyah Malang At 20:56 27 March 2015 (PT) 156 33. “Every employee shall inform his employer or any other employee of that employer with specific responsibility for the health and safety of his fellow employees – (a) of any work situation which a person with the first-mentioned employee’s training and instruction would reasonably consider represented a serious and immediate danger to health and safety; and (b) of any matter which a person with the first-mentioned employee’s training and instruction would reasonably consider represented a shortcoming in the employer’s protection arrangements for health and safety, in so far as that situation or matter either affects the health and safety of that first mentioned employee or arises out of or in connection with his own activities at work, and has not previously been reported to his employer or to any other employee of that employer in accordance with this paragraph”. 34. “An employee who is dismissed shall be regarded for the purposes of this Part as unfairly dismissed if the reason (or, if more than one, the principal reason) for the dismissal is that – (a) having been designated by the employer to carry out activities in connection with preventing or reducing risks to health and safety at work, the employee carried out (or proposed to carry out) any such activities, (b) being a representative of workers on matters of health and safety at work or member of a safety committee – (i) in accordance with arrangements established under or by virtue of any enactment, or (ii) by reason of being acknowledged as such by the employer, the employee performed (or proposed to perform) any functions as such a representative or a member of such a committee, (ba) the employee took part (or proposed to take part) in consultation with the employer pursuant to the Health and Safety (Consultation with Employees) Regulations 1996 or in an election of representatives of employee safety within the meaning of those Regulations (whether as a candidate or otherwise), (c) being an employee at a place where – (i) there was no such representative or safety committee, or (ii) there was such a representative or safety committee but it was not reasonably practicable for the employee to raise the matter by those means, he brought to his employer’s attention, by reasonable means, circumstances connected with his work which he reasonably believed were harmful or potentially harmful to health or safety, (d) in circumstances of danger which the employee reasonably believed to be serious and imminent and which he could not reasonably have been expected to avert, he left (or proposed to leave) or (while the danger persisted) refused to return to his place of work or any dangerous part of his place of work, or (e) in circumstances of danger which the employee reasonably believed to be serious and imminent, he took (or proposed to take) appropriate steps to protect himself or other persons from the danger. (2) For the purposes of subsection (1)(e) whether steps which an employee took (or proposed to take) were appropriate is to be judged by reference to all the circumstances including, in particular, his knowledge and the facilities and advice available to him at the time. (3) Where the reason (or, if more than one, the principal reason) for the dismissal of an employee is that specified in subsection (1)(e), he shall not be regarded as unfairly dismissed if the employer shows that it was (or would have been) so negligent for the employee to take the steps which he took (or proposed to take) that a reasonable employer might have dismissed him for taking (or proposing to take) them”. 35. Defined more broadly in section 43K ERA 1996 than in Section 230(3) ERA 1996. 36. Either the duty of care or the employer’s obligation to maintain trust and confidence. 37. According to Roberts (2014): “While the immediate motivation may be personal outrage due to the bullying or sexual harassment, community standards and attitudes ensures that those issues also have a strong public interest dimension”. 38. On money laundering see Sections 330-332 of the Proceeds of Crime Act 2002 and on suspected terrorism see Section 19 Terrorism Act 2000. Downloaded by Universitas Muhammadiyah Malang At 20:56 27 March 2015 (PT) 39. This could build on the existing British Standards Institute (2008) Whistleblowing Arrangements Code of Practice, which needs to be updated anyway. See also the Draft Code of Practice included in the report of Public Concern at Work’s Whistleblowing Commission. 40. It is recognized that, in practice, this may be easier said than done. 41. Such an approach is not incompatible with section 43L ERA 1996 which states that: “Any reference in this Part to the disclosure of information shall have effect, in relation to any case where the person receiving the information is already aware of it, as a reference to bringing the information to his attention”. 42. The fact that lack of good faith can be taken into account in assessing compensation under Section 123(6A) ERA 1996 confirms that it is possible for a worker acting in bad faith to reasonably believe that a disclosure is in the public interest. The courts have also acknowledged that a person’s motive is subjective and may be mixed and/or change over time. References Bolton School v. Evans (2007) IRLR 140. British Standards Institute (2008), Whistleblowing Arrangements Code of Practice, BSI, London. Brown, A. (Ed.), (2008), Whistleblowing in the Australian Public Sector: Enhancing the Theory and Practice of Internal Witness Management in Public Sector Organisations, ANU EPress, Canberra, p. 19. Guja v. Moldova (2008) ECHR 14277/04. Heinisch v. Germany (2011) IRLR 922. Information Commissioner (2013), The Public Interest Test, Version 2, Information Commissioner’s Office. Lewis, D. (2008), “Ten years of public interest disclosure legislation in the UK: are whistleblowers adequately protected?”, Journal of Business Ethics, Vol. 82, pp. 497-507. Lewis, D. (2011), “Whistleblowing in a changed legal climate: is it time to revisit our approach to trust and loyalty at the workplace?”, Business Ethics: A European Review, No. 1, pp. 71-87. Lewis, D., Brown, A. and Moberly, R. (2014), “Whistleblowing, its importance and the state or research”, in Brown, A., Lewis, D., Moberly, R. and Vandekerckhove, W. (Eds), International Whistleblowing Research Handbook, Edward Elgar, Cheltenham. Leys, J. and Vandekerckhove, W. (2014), “Whistleblowing duties”, International Whistleblowing Research Handbook, Edward Elgar, Cheltenham. Marshall, T. (1964), Class, Citizenship and Social Development, Doubleday, New York, NY. Near, J. and Miceli, M. (1985), “Organizational dissidence: the case of whistle-blowing”, Journal of Business Ethics, Vol. 4 No. 1, pp. 1-16. R v. Shayler (2003) AC 247. Workplace whistleblowing 157 IJLMA 57,2 Downloaded by Universitas Muhammadiyah Malang At 20:56 27 March 2015 (PT) 158 Roberts, P. (2014), “Motivations for whistleblowing: personal, private and public interests”, International Handbook on Whistleblowing Research, Edward Elgar, Cheltenham. Roberts, P., Brown, A. and Olsen, J. (2011), Whistling While They Work: A Good Practice Guide for Managing Internal Reporting of Wrongdoing in Public Sector Organisations, ANU EPress, Canberra, p. 40. SK & F v. Department of Community Services (1990) FSR 617. Stoll v. Switzerland (2007) 47 EHRR 1270. Transparency International (2013), International Principles for Whistleblowing Legislation, Transparency International, Berlin. Whistleblowing Commission (2013), Report on the Effectiveness of Existing Arrangements for Workplace Whistleblowing in the UK, Public Concern at Work, London. Corresponding author David Lewis can be contacted at: d.b.lewis@mdx.ac.uk For instructions on how to order reprints of this article, please visit our website: www.emeraldgrouppublishing.com/licensing/reprints.htm Or contact us for further details: permissions@emeraldinsight.com