Whistleblowing

Jo Swinson Excerpts

Tuesday 11th September 2012 Westminster Hall

[The Parliamentary Under-Secretary of State for Business, Innovation and Skills (Jo Swinson)]

It is a great pleasure to serve under your chairmanship, Mr Leigh, particularly as this is my first of no doubt many Adjournment debates in Westminster Hall. I congratulate the hon. Member for North Ayrshire and Arran (Katy Clark) on securing this important debate. She has a strong track record of campaigning, particularly for workers’ rights. I know that that was her background in professional life before coming to the House, and she has continued it in an excellent manner while she has been here. We entered Parliament together, and it is a delight to respond to her on this occasion. I thank her for her kind congratulations and good wishes to me in my new role. I hope that we will be able to engage constructively, as I know that she has a significant contribution to make in this area of her expertise.

It is nice that my first Adjournment debate has allowed me to look into whistleblowing in more detail. As the hon. Lady mentioned, it is a complex and specific area of law. I will do my best to answer her questions, but if there are any outstanding issues, I will be more than happy to write to her and engage with her in future. No doubt there will be further debate on Report of the Enterprise and Regulatory Reform Bill, which will return to the House of Commons in due course.

Whistleblowing is an important issue. It is important to recognise why the Public Interest Disclosure Act 1998 was passed in the first place. From a range of disasters, incidents and other cases, such as the dreadful events on Piper Alpha, it became clear that there was not enough protection for people who blew the whistle to raise concerns about health and safety issues or other matters of public interest, and that that situation needed to be put right so that people would have the ability and confidence to speak out in such circumstances without fear of losing their jobs or other detriment.

It is fair to say it was a landmark piece of legislation, introduced by the Labour Government, to whom credit is due. However, it is also important to note and remember that it attracted cross-party support as well, because Members throughout the House recognised that change was needed. The Act meant that for the first time, employees raising genuine concerns about wrongdoing in the workplace were protected. This Government strongly support the protection that the Act gives whistleblowers, and we agree that it is incredibly important that employees feel able to speak up about workplace issues affecting the public interest.

In responding, I will say a little about the change to the Act proposed in the Enterprise and Regulatory Reform Bill. It aims to fix a specific issue that has arisen as a result of the judgment in the case of Parkins v. Sodexho Ltd 2002, whose effect was to widen the scope of the Act beyond what was originally intended, leading the legislation to be used opportunistically in some cases to address matters of purely private interest. There is wide agreement that the effect of Parkins v. Sodexho must be addressed, and I recognise that the hon. Lady understands that it is a problem that needs rectifying. There are slightly differing views about how that should be done, and it is right that those should be debated and scrutinised thoroughly in the House.

The relevant clause of the Enterprise and Regulatory Reform Bill was debated in Committee on 3 July. During that debate, my hon. Friend the Member for North Norfolk (Norman Lamb) set out in detail the reasons for the Government’s approach. I do not intend to repeat all his arguments, but we believe that the Government’s approach of inserting a public interest test is the only way of fully closing the loophole created by Parkins v. Sodexho while avoiding the possible unintended consequences of alternative approaches.

In preparing for this debate, I looked at some of the figures demonstrating the scale of the issue. In the first year after PIDA was passed, 157 protections were applied for. As one might expect with a new piece of legislation, that number increased as awareness increased, to 400 or 500 in 2002. Since the ruling, it has expanded rapidly, so that in 2011-12, about 2,500 applications were made under PIDA.

There are different ways of interpreting those figures. One is that there is lots of whistleblowing and it is a wonderful success of the Act, but I think that it is understood that application for protection is often being added on in employment cases. Most cases do not even come to tribunal, as the majority are settled in other ways. Of the 2,500 in the last year we have figures for, more than 900 ended up in a conciliated settlement through ACAS and more than 600 were withdrawn or privately settled. There is, therefore, concern about it being used in an opportunistic fashion in some cases. I think that that is recognised, and so we need to deal with it.

In preparing for the debate, I wondered what the controversy was in requiring that the Public Interest Disclosure Act 1998 had to include a public interest test, because there is a basic logic to that—it does what it says on the tin. When it was originally drafted, it was almost taken for granted that, because of the title of the Bill, it would be used for cases that were genuinely in the public interest. I am convinced it is within the original spirit of the Act that the person making the application for its protection should reasonably believe they are raising an issue in the public interest, so we are just trying to prevent the tactical, opportunistic use of PIDA by those who claim that protection to raise purely personal issues.

[Jim Shannon]

I congratulate the Minister on her promotion and wish her well in her new job. I am sure that she will be aware of a new organisation that has been set up in the past month, perhaps just outside the legislative consultation process in which we are now involved, on behalf of whistleblowers who have got together to promote their cases. Does the Minister intend to contact that organisation to get its input into the process, so that the voice of whistleblowers is heard fully?

[Jo Swinson]

I thank the hon. Gentleman for his intervention and kind words, and for his contribution to my knowledge on this matter. I have not come across that new organisation which has only been in existence for a month, but my approach is to welcome any organisation or individual that wishes to ensure that its concerns are heard. I would be happy to read a submission from that organisation if he is able to pass on its contact details after the debate.

The hon. Lady mentioned concerns about the burden of proof, which she felt would be unhelpful to individuals. Clearly, it will be up to the tribunal to decide whether that test is met. I do not think that having to bring something in the public interest is a hurdle that will stop people bringing cases forward. It will promote consistency in the legislation and underlines the principle that the 1998 Act, with the right and proper extra protections it offers, is concerned with a public rather than a private interest. In the autumn statement, we announced we would fix that specific issue, and it will be done through the Enterprise and Regulatory Reform Bill.

The hon. Lady raised a wide range of issues. There are no current plans to review the legislation more widely as the Act is generally operating well and as intended, but I will reflect on the matters she has raised in such a thoughtful manner.

The Government provide guidance on making protected disclosures, and the hon. Lady asked about how it would be promoted. Of course, in light of the proposed change under the Enterprise and Regulatory Reform Bill we will consider whether the guidance needs to be revised at all. I understand the genuine concern relating to the survey that suggests that many people are entirely unaware of the protection. It is worth putting on the record the Government’s thanks for the excellent efforts made by Public Concern at Work in promoting the 1998 Act and bringing it to the attention of more workers. It is important that it is widely understood.

The hon. Lady asked a specific question about whether lawyers will inform their clients. They have a general duty to advise a client on any aspect of the law that is relevant to the situation, as she will know from her professional life, and that includes advising on public interest disclosure rights. That does not need to be set down in legislation, but is a duty that any legal professional would fall under.

Turning to other issues that were raised, there has been a suggestion from Public Concern at Work that the Government should copy the vicarious liability provisions of the Equality Act 2010. Aspects of the 2010 Act are currently under review, particularly in relation to vicarious liability. While that is ongoing, further changes to PIDA would be premature. I am also aware of the concern about the judgment in the Fecitt case, in particular. An employee who blows the whistle could be subject to inappropriate bullying behaviour by other members of the work force, and the concern about the ruling was that employers would perhaps not have a responsibility to do something about that. The ruling was specific, however, and took the view that in that case the NHS had taken reasonable steps. Therefore, I would not necessarily assume that there is a guarantee that employers never need to do anything. The judgment is perhaps not as crystal clear as some would like, but clearly an employer that does not do enough to prevent an employee being victimised by other employees could themselves be liable for their failure to act if it can be shown that the employee has made a protected disclosure, so there is perhaps some reassurance about those concerns.

There is another potential remedy in the law. An employer could be vicariously liable under other legislation, such as the Protection from Harassment Act 1997, depending on the circumstances of the individual case. It is also possible that an employee who had experienced that could argue that the employer had acted to destroy the relationship of mutual trust and confidence, and thereby bring a claim for constructive dismissal.

On the Shipman inquiry and the good faith test, we do not see its purpose as being interchangeable with the public interest test. The good faith test prevents an individual from making a disclosure for a malicious purpose; for example, to deliberately cause commercial damage to their employer. The public interest test deals separately with the fact that the disclosure must be of public, rather than private interest. The good faith requirement is not intended to operate as an additional barrier to genuine whistleblowers.

The hon. Lady raised the Leveson and Mid Staffordshire inquiries. They are large inquiries in their own right and deal with a wide array of different issues, much wider than the specific provisions of the Public Interest Disclosure Act. The Department of Health has published its response to the Mid Staffordshire inquiry and is continuing to promote whistleblowing in the NHS.

On the categories and definitions of “worker”, we are already in dialogue with stakeholders and the Department of Health about the categories of worker that are covered. It is important that individuals who should be included are not inadvertently excluded from the scope of the Act. I hope the hon. Lady will be reassured that those discussions are ongoing with a genuine desire to ensure that people are properly covered.

The hon. Lady asked for a more thorough, wide-ranging review of the Act in its entirety. At the moment, there is not necessarily a case for that, but, as I said, I will reflect on the points that she has made. There are various issues, and it is important to ensure that they are all considered on an ongoing basis.

[Katy Clark]

I particularly raised concerns about the way that the NHS operates in its use of gagging clauses. Will the Minister discuss that with the Department of Health? There is a great deal of public concern that information it would be helpful to have in the public domain is not being put there because of individuals’ fear of victimisation.

[Jo Swinson]

I will certainly undertake to bring that issue to the attention of my colleagues in the Department of Health. I share the hon. Lady’s concerns and will come back to her on them. We need to ensure that the protections in the Act are being properly applied, so I will look at the issue. On the whole, we believe that the Public Interest Disclosure Act continues to work well. The change we are making in the Enterprise and Regulatory Reform Bill will provide clarity for individuals and employers. It will maintain protection for genuine whistleblowers and prevent misuse of the legislation. We remain convinced that it is the best way to ensure that the Act maintains its purpose, effectiveness and credibility.