Articles
22.07.2009
Public Interest Disclosure Seminar
On 16th July 2009 Civitas Employment Team delivered a seminar to an audience of public sector lawyers and HR professionals at Gwent Police headquarters in Cwmbran. The talk, focusing on the Public Interest Disclosure provisions of the Employment Rights Act 1996, was presented by the head of the Employment Team Jonathan Walters, who as “the heavyweight employment practitioner on circuit” (Legal 500 2008) was ideally suited to deal with the inevitable difficulties this area poses.
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Public Interest Disclosure Seminar
On 16th July 2009 Civitas Employment Team delivered a seminar to an audience of public sector lawyers and HR professionals at Gwent Police headquarters in Cwmbran. The talk, focusing on the Public Interest Disclosure provisions of the Employment Rights Act 1996, was presented by the head of the Employment Team Jonathan Walters, who as “the heavyweight employment practitioner on circuit” (Legal 500 2008) was ideally suited to deal with the inevitable difficulties this area poses.
Although certainly not encountered on a day-to-day basis, Public Interest Disclosure issues are likely to arise often enough to ensure that the unwary and under-informed could be caught out. In fact, the statistics suggest that there has been a marked rise in applications to Employment Tribunals involving a PID allegation, from 157 in 1999-2000 to 1,497 in 2007-2008 and over 1,700 last year. With potentially unlimited damages awards (averaging £107,000 in the first three years), and Government suggestions that copies of claim forms be forwarded to the relevant regulator, a high degree of care obviously needs to be taken whenever a claim of this nature is presented.
In his address Jonathan reviewed sections 43A to 49 of the Employment Rights Act 1996. An worker has a right not to be subject to any detriment or be dismissed as a result of a Public Interest Disclosure. Any dismissal of an employee where the sole or principal reason for the dismissal was the disclosure will be rendered automatically unfair.
The first hurdle a Claimant will have to overcome is establishing that the disclosure in question is a qualifying disclosure within the meaning of s43B(1). Unless the tribunal finds the Claimant had a reasonable belief in facts tending to establish one of the categories contained within that section it is not a qualifying disclosure and the matter ends there. It has to be borne in mind that the disclosure may relate to events which have not yet occurred, although the protection is only afforded to those who have made the disclosure and not those who simply threaten to do so.
Once a qualifying disclosure is established one must then turn to review whether that disclosure is a protected disclosure within the meaning of the Act. If the disclosure is made to the employer then the only requirement is that the disclosure is made in good faith before the same becomes a protected disclosure (s43C(1)(a)). Equally if the disclosure is made to a person believed to have legal responsibility for the relevant failure, a body authorised by the employer to receive disclosures or where the disclosure is made to a Minister of the Crown and concerns an employer appointed by the Crown then all that is required is that the worker has a reasonable belief in the disclosure’s truth and it is made in good faith.
The second broad category of potentially protected disclosures are those which the worker reasonably believes to be substantially true and are made in good faith to a “prescribed person” (as defined by Para 1 of Sch 1 Public Interest Disclosure (Prescribed Persons) Order 1999), whom the worker reasonably believes has responsibility. If those requirements are satisfied, the qualifying disclosure is a protected disclosure under s43F. In this regard Jonathan highlighted the case of Duding v Salisbury District Council.
The provisions of s43G were considered, which deal with the situation where the disclosure is given to a party other than those set out above and the various tests that must be overcome before a qualifying disclosure becomes a protected disclosure within the meaning of the Act.
The final class of protected disclosures are those where the failure complained of is one of an exceptionally serious nature. The decisions of Everett v Miyano Care Services Limited and Herron v Winter Comfort for the Homeless were compared and discussion invited.
The talk concluded with a consideration of issues of detriment, remedy and the legal burden of proof.
Jonathan spoke for around an hour, and a comprehensive handout on the relevant provisions was provided. After the lecture the audience was divided into groups to consider a number of pre-prepared exercises, which were then reviewed in a question and answer session with guidance provided by Jonathan with the other Civitas Employment Team members present. A lively discussion ensued and a diverse range of views were expressed by the participants. It seemed that the seminar, and in particular the combination of a talk followed by structured questions was well received, and generated a volume of interesting debate.
Such a session is a useful tool in establishing the necessary base knowledge required to deal with an area of law which is unlikely to arise often enough for a busy practitioner to have an in-depth knowledge of the issues. This is particularly so given that the number of Public Interest Disclosure applications are increasing rapidly, and such a claim provides scope for an embarrassing (and expensive) oversight. As demonstrated above, it certainly pays to have a good grasp of the relevant provisions.
Simon Hughes
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