The Old Whistle Test
The Court of Appeal (case - Babula v Waltham Forest College) has recently reached an important decision in connection with the whistleblowing provisions. Those are sections Section 43A-43H of the Employment Rights Act 1996, inserted by section 1 of the Public Interest Disclosure Act 1998.
^ TOPWhistleblowing provisions
The whistleblowing provisions seek to protect important public interests. They apply in the following circumstances (as long as in making the disclosure neither a criminal offence is committed nor legal professional privilege breached). Namely ones which, in the reasonable belief of the worker making the disclosure, tend to show one or more of the following (the wording taken directly from section 43B)—
(a) that a criminal offence has been committed, is being committed or is likely to be committed,
(b) that a person has failed, is failing or is likely to fail to comply with any legal obligation to which he is subject,
(c) that a miscarriage of justice has occurred, is occurring or is likely to occur,
(d) that the health or safety of any individual has been, is being or is likely to be endangered,
(e) that the environment has been, is being or is likely to be damaged, or
(f) that information tending to show any matter falling within any one of the preceding paragraphs has been, or is likely to be deliberately concealed.
The sections specify the persons to whom disclosure can be made, and the circumstances applicable to disclosure to such persons.
^ TOPPublic interest
There are obviously two important public interests here. The first is that a worker is able to make a disclosure in appropriate circumstances to the appropriate person. The second is that this is not misused by people purporting to make such a disclosure with an ulterior motive.
^ TOPReasonable belief
The court has rightly made it clear that the mere fact that the belief is wrong does not mean that it was not reasonably held. It is a vital part of the whistleblowing provisions that an employee who reasonably holds a belief can make a disclosure notwithstanding that he ultimately turns out to be wrong. Indeed many of the most important instances would be circumstances where an employee could not have proof positive.
^ TOPThree stage test
What the Court of Appeal have decided is that there is a three stage test to go through. Firstly deciding whether the employee believed the information he was disclosing fell within one of the provisions set out in section 43B above (that being his subjective belief). Secondly the court must decide whether, viewed objectively, that belief was reasonable. Thirdly, to decide whether the disclosure was made in good faith, meaning that disclosure would not be protected if an ulterior motive was the predominant or a dominant purpose of the worker making it. (in each case of course disclosure must be to a person falling within thecategory applicable in the provisions)
^ TOPSensible interpretation
This is a sensible and workable interpretation of important provisions. The whistleblowing provisions are not merely ones that need to be considered by employment lawyers. They can be relevant in a wide number of circumstances, and are public interest provisions which no lawyer should be unfamiliar with.