Enterprise and Regulatory Reform Bill

Lord Brooke of Sutton Mandeville Excerpts

Monday 10th December 2012 Grand Committee

[Lord Brooke of Sutton Mandeville]

My Lords, I have no idea what the Minister is going to say in response to this but I raise one textual question which I address to him rather than to the mover of the amendment. In Amendment 22, in the fifth line of subsection (1), there is a reference to “a person” in the singular. If my noble friend were minded to accept this amendment, I would be interested to know whether he feels that it would have been strengthened by the inclusion of “or persons” after “person”. It seems possible in terms of the case that the victimisation may be the work of more than one person.

[Lord Young of Norwood Green]

My Lords, I, too, support the thrust of what my noble friends Lord Touhig and Lord Wills seek to do with these amendments, which is to extend vicarious liability to whistleblowing legislation. This loophole has been graphically explained to us in the context of three nurses from Manchester who raised a concern about a colleague lying about his qualifications. The nurses raised their concerns within the service and the primary care trust and their concern was upheld. However, as we have also heard, the nurses were subject to bullying and harassment from co-workers. One of the nurses received a telephone call threatening her daughter and to burn down her home. As we have already heard, the case proceeded as far as the Court of Appeal, which found that vicarious liability does not exist in the Public Interest Disclosure Act as it specifically does in discrimination law.

We have also heard that shortly after the publication of the judgment the noble Earl, Lord Howe, the Health Minister, agreed that this area needs to be reviewed. Public Concern at Work reports that it routinely hears on its advice line about harassment and bullying of whistleblowers by co-workers. It is bad news for whistleblowers everywhere if those who are bullied by fellow staff members are not protected and represents yet another barrier that may inhibit workers from raising legitimate concerns, which are in the public interest, over wrongdoing by their employer. The amendment by my noble friend Lord Touhig would introduce a new clause that imposes a duty on employers,

“to take reasonable steps to ensure that the worker is not subjected to any detriment by any act, or any deliberate failure to act, by a person other than his employers done on the ground that the worker has made the disclosure”.

My noble friend Lord Wills proposes a further refinement to this approach, which would be to include personal liability against workers who bully co-workers for blowing the whistle. Such an amendment is likely to have a powerful deterrent effect and will mean that those who may otherwise be tempted to victimise a colleague for blowing the whistle may think twice because of their own potential liability for doing so. Again, this is included in the relevant Equality Act, that of 2010.

These amendments have even more relevance if we look at the current circumstances where the lack of whistleblowing in recent high-profile cases—such as the Jimmy Savile scandal, the high mortality rates under Mid Staffordshire NHS Foundation Trust and phone hacking at the News of the World—suggests that much more needs to be done to encourage and, perhaps even more importantly, protect workers blowing the whistle on malpractice and wrongdoing in the workplace. Workers are the eyes and ears of any organisation and often the first to know if things are going wrong or to have suspicions about malpractice in the workplace. Workers can prevent the disaster from happening and alert their own companies and regulatory authorities to prevent health and safety dangers, financial malpractice and environmental risks that may affect members of the public.

It is over 13 years since the Public Interest Disclosure Act 1998 and we believe that it is high time that the whole system should be reviewed—we would welcome the Minister’s views on that—to identify where further protection is needed to encourage employees to speak out when they see wrongdoing taking place.