The Public Interest Disclosure Act of 1998 (“PIDA”) is never far from the news, or the desks of most employment lawyers these days. It’s a complex piece of legislation that is disliked by both Claimant and Respondent alike. Now, according to The Guardian, the Government has decided to “investigate whether PIDA is failing to protect those who speak out from being victimised, harassed and even sacked by their employers.” A consultation into the way the Act works will follow.
Personnel Today also reported on an amendment to the Enterprise and Regulatory Reform Bill (“ERR”) which will remove the need for an employee to bring a whistleblowing claim in good faith, as is currently required. The ERR is already drafted to require that any Protected Disclosures should be made in the public interest.
Then on Tuesday the Whistleblowing Commission was launched by the charity Public Concern at Work (PCAW) to investigate whether PIDA is doing its job properly or not. PCAW was one of the driving forces behind the establishment of PIDA in the first place. One of the members of the new Commission is Gary Walker, the former Chief Executive of the United Lincolnshire Hospitals NHS Trust, currently enjoying his 15 minutes of fame for allegedly breaching the terms of the compromise agreement he signed after leaving their employment. A separate debate broke out over the question of whether “gagging” clauses should be allowed to restrict disclosures of matters of public interest. I wrote about that issue in Personnel Today on Tuesday.
Does PIDA need to be reformed? According to PCAW chair Carole Sergeant
“Many, if not all of the issues that are causing so much concern today could have been prevented or stopped early if individuals had felt able to speak out and had been listened to. … We need to make sure that whistleblowing really works for the sake of individuals, organisations and society as a whole”
Gary Walker claims that he was dismissed because he raised concerns over patient safety at ULH and then he was forced into signing up to a compromise agreement and being paid a reported £500,000 to pay his legal bills and save his house. Mr Walker claims he was sacked (officially for gross misconduct for swearing in meetings) because he raised concerns about a dangerous targets culture within the NHS that could put patients at risk to the head of the NHS, Sir David Nicholson. He was offered the compensation package to prevent him going public. Had he refused the money and blown the whistle publicly in 2009 would events have taken a different turn?
Mr Walker was in an invidious position and it is easy to sit back here and say that if he felt strongly enough about it he could have refused the money and carried on fighting the hospital. I suppose that might be called the hair-shirt option, and is not only unattractive but probably also unrealistic for the majority of employees.
The other option, keeping quiet and not blowing the whistle, though much more understandable, is also very unappealing, especially on a wider societal level. In this instance it led to major problems in public institutions going unnoticed and undetected, and in this instance may have led to unnecessary deaths. It should not be over-looked that the underlying problem in this NHS crisis was an attempt by the Hospitals concerned to meet “targets” – i.e to comply with government policy.
It is surely unrealistic to expect individuals, not matter how senior and well placed, to bear responsibility for bringing matters of the utmost seriousness to the attention of the authorities and thereby jeopardising their careers and families. Where are the regulators to prevent these tragedies occurring? In the NHS there is the Care Quality Commission and also the Independent Regulator of NHS Trusts, who exist as prescribed bodies to whom the whistle can be blown if the employer is not receptive. Where were they in the Mid-Staffs debacle? Was Mr Walker paid his compensation package for not notifying them? It strikes me that any system that relies upon individuals, however well motivated and however impeccable their integrity and reputation might be, to regulate their employers is doomed to fail.
It is vital that employees have some protection from victimisation, but the recent reports in the media suggest that staff at Trusts like Mid-Staffs and United Lincoln were too scared to speak out for fear of reprisals. PIDA is clearly not doing its job and new, simpler, legislation is needed. However, that alone is not enough. Too often potential Claimants look to blow the whistle because (a) there is no qualifying period of continuous employment needed and/or because (b) there is no statutory cap on the amount of compensation awardable and/or (c) because there is a perception that an employer can be brought swiftly to the negotiating table rather than risk sensitive information being released to a Regulator or the Press.
The problem with PIDA is that it has been used by individuals to try and gain an advantage over their employers and that trend will continue now that employees need two years continuous employment experience in order to claim for unfair dismissal whereas breach of PIDA requires no such qualification period. Removing the requirement that the employee acts in good faith will be detrimental as well, whereas requiring that the disclosure is in the public interest (if you can define it adequately) must be a welcome step. However, the Act does need to be reviewed and reformed in such a way that it ceases to be a sword to be used against an employer and instead becomes a shield against victimisation, which is what it was originally intended to be.