Enterprise and Regulatory Reform Bill

Lord Touhig Excerpts

Monday 10th December 2012 Grand Committee

Moved by

[Lord Touhig]

22: After Clause 15, insert the following new Clause—
“Duty on employers to prevent detriment caused by others to workers who have made protected disclosures
(1) The Secretary of State shall make regulations requiring an employer, where a worker has made a protected disclosure under section 43A of the Employment Rights Act 1996, 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 employer done on the ground that the worker has made the disclosure.
(2) Regulations under this section—
(a) are to be made by statutory instrument, and(b) are not to be made unless a draft of the instrument has been laid before, and approved by a resolution of, each House of Parliament.”

[Lord Touhig]

My Lords, I am grateful to my noble friend Lord Wills, the noble Lord, Lord Low of Dalston, and of course my noble friend Lady Dean of Thornton-le-Fylde for agreeing to support Amendment 22. I am also grateful to the Minister, the noble Lord, Lord Marland, for agreeing to meet with me and representatives of the charity Public Concern at Work to discuss this amendment and Amendment 23. I also thank him and his officials for being willing to continue this dialogue with Public Concern at Work these past couple of weeks.

This amendment concerns vicarious liability. Earlier this year, I received a letter from one of three nurses who had been denied protection under the Public Interest Disclosure Act. The three nurses had raised concerns about the qualifications of a fellow nurse. The nurse had been claiming to be more qualified than was in fact the case. The three nurses were subsequently victimised and, as a result of raising honest and genuine concerns, one had threats made to her daughter and to her home. The case went as far as the Court of Appeal, where it was found that vicarious liability does not exist under the Public Interest Disclosure Act. As a result, three totally innocent and good nurses, who simply acted to protect the public, were pursued by the NHS Manchester trust for the cost of the appeal, which amounted to £39,000.

These three nurses acted in the interests of us all but, as a result, have themselves become victims. I have to ask: where do people go to right a wrong such as this, except to Parliament? As things stand, employers are able to escape liability where they do not protect those who have blown the whistle about serious malpractice within their workforce. On top of that, the bullying culture within the workplace is all too common.

Public Concern at Work tells me that bullying as a result of whistleblowing is a common issue raised on their whistleblowing advice line. Indeed, this is so in the case of Nurse Helene Donnelly, who gave evidence to the Mid Staffordshire NHS trust inquiry. She is a whistleblowing nurse who told the inquiry how she was physically threatened by colleagues after raising concerns about standards in the accident and emergency department. She told the inquiry that,

“threats to my physical safety were made”,

to the point where, after finishing work at night, she would have a family member,

“come and collect me from work because I was too afraid to walk to my car in the dark on my own”.

Mrs Donnelly also told the inquiry that she contacted her local Royal College of Nursing representative, who was initially shocked by what she had to say. Later, however, she was told to keep her head down.

Amendment 22 encourages employers to put whistleblowing arrangements in place and, if they do all they can to protect the whistleblower, employers will have a defence. It has been drafted widely to include third parties but, given the Government's review of third-party harassment under the Equality Act, it could be limited solely to co-workers. The letter I received from one of the nurses asks one simple question:

“Is there anything you feel you may be able to do to stop NHS Manchester pursuing us for these costs?”.

Well, there is something we can do and that is to support Amendment 22. I beg to move.

[Lord Wills]

My Lords, I support Amendment 22, to which I have added my name and which has been so ably put forward by my noble friend Lord Touhig.

As we have heard, Amendment 22 seeks to close a loophole which was opened up by a Court of Appeal decision on a case brought by the three nurses from Manchester. The Court of Appeal judge who ruled in that case said:

“I accept”,

that the claimants’ lawyers,

“may be right to say that if the Tribunal decision is allowed to stand, it means that on one view of the matter whistleblowers are inadequately protected. If so, any remedy must lie with Parliament”.

We now have an opportunity to provide that remedy and I hope that the Government will take it.

The Minister’s noble friend, the noble Earl, Lord Howe said in October last year, when the results of this case were heard:

“We are considering whether we need to do more to protect whistleblowers following this judgment”.

Can the Minister tell us the outcome of those considerations within government; and, if they are not going to act now, why not?

As we have heard from my noble friend, there is significant evidence from the organisation Public Concern at Work that harassment and bullying by co-workers can often be a consequence of whistleblowing and a substantial deterrent to it. This is not acceptable. It is not acceptable that an employer can escape liability for failing to protect a whistleblower from such harassment and bullying. The amendment offers a simple way of remedying such an obvious anomaly by mirroring equality legislation. I hope the Government will feel able to accept it.

I also hope that the Minister will look favourably on my Amendment 23E, which further refines this approach by providing for personal liability against workers who bully or harass co-workers for whistleblowing. It will act as a powerful deterrent to such behaviour and, in doing so, help to encourage whistleblowing. It mirrors provisions in discrimination legislation and I hope that the Government will feel able to accept it.

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[Lord Marland]

I do not have a view because I do not have enough knowledge of the subject. As the noble Lord rightly said, he is quoting a small piece that I am unable to form an opinion on because I do not have enough evidence to support one view or another. However, I shall be happy to respond to the noble Lord on that issue. It is a perfectly reasonable question but it is too specific for me at the moment, I am afraid. I would need to take legal advice on it because I am not qualified in that area. I know that that is not a satisfactory answer but I hope that the noble Lord, Lord Touhig, will withdraw his amendment.

[Lord Touhig]

My Lords, I thank all noble Lords for their contributions. I echo the point made by the Minister; this issue is supported across the House. We are all in the debt of Richard Shepherd MP, who pushed hard to secure this legislation. When I was dealing with it a year or so before, I was not successful, but I should like to put on record the huge support I had from one Iain Duncan Smith, who worked very hard with us to try to ensure that this legislation became law.

I understand some of the Government’s worries and concerns. We have had a useful meeting with the Minister—I have already thanked him for that—and his officials but, at the end of the day, the real prize would be a complete review of the Public Interest Disclosure Act. Aneurin Bevan once said that our principles remained constant but our policies, like tools, have to be reworked with each generation because they get worn out with use. We need to review and revise the Public Interest Disclosure Act.

I hope the Minister and his officials will feel able to continue the dialogue, not only with me but with other noble Lords and Public Concern at Work, because we can improve this legislation by the time we get to Report and Third Reading. With that hope and aspiration, I beg leave to withdraw the amendment.

Amendment 22 withdrawn.

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Moved by

[Lord Touhig]

23: After Clause 15, insert the following new Clause—
“Removal of requirement for protected disclosures to be made in good faith
(1) The Employment Rights Act 1996 is amended as follows.
(2) In section 43C(1) (disclosure to employer or other responsible person), omit “in good faith”.
(3) In section 43E(b) (disclosure to Minister of the Crown), omit “in good faith”.
(4) In section 43F(1)(a) (disclosure to prescribed person), omit “in good faith”.
(5) In section 43G (disclosure in other cases), in subsection (1)(a) omit “makes the disclosure in good faith” and in paragraph (b) leave out “he”.
(6) In section 43H (disclosure of exceptionally serious failure), in subsection (1)(a) omit “makes the disclosure in good faith” and in paragraph (b) leave out “he”.”

[Lord Touhig]

My Lords, Amendment 23 is supported by my noble friends Lord Wills and Lady Dean of Thornton-le-Fylde and by a good friend to everyone on all sides of the House, the noble Lord, Lord Low of Dalston. I have been a Member of the House for less than three years and—I am sure I am not alone in saying this—I could not have had a better friend to encourage and support the things we share in common. I think I speak for people on all sides of the House in that respect.

The amendment seeks to remove the good faith test. It is essentially a tidying-up amendment which needs to be read in conjunction with the public interest test that the Government propose in Clause 15. We have tabled the amendment as a means of reducing the number of hurdles that an individual has to jump in order to succeed under the Public Interest Disclosure Act 1998, as enacted into the Employment Rights Act.

As Clause 15 stands, an individual who brings a whistleblowing claim would have to answer at least four questions. They would have to show, first, that they had made a protected disclosure under one of the categories set out in Section 43B of the Employment Rights Act, which includes information about criminal offences, environmental dangers, health and safety issues, miscarriages of justice and the breach of legal obligation.

They would have to show, secondly, that it was their reasonable belief that the protected disclosure was in the public interest and, thirdly, that they have made a qualifying disclosure, the tests of which vary according to whom the individual discloses the information to. The lowest test for disclosure is where an individual raises a concern internally or with those who are legally responsible for the workplace, and the highest is where an individual raises a concern with an external body—for example, an organisation such as Greenpeace or any part of the media. Individuals need to show that they meet one of the preconditions in the Act and whether the disclosure was reasonable in the circumstances, paying attention to the seriousness concerning to whom the disclosure is made and whether there has been a breach of confidentiality. Fourthly, such individuals will have to show that they have made the disclosure in good faith, which has been interpreted by the Court of Appeal as meaning that the predominant motive for raising concern should be in the public interest.

Individuals would need to show that they had fulfilled all the above conditions to be protected. To have an additional public interest test is simply an unnecessary further hurdle. I am sure that we could all give examples of people being deterred from blowing the whistle. One of my motivations for becoming involved in this issue many years ago was that there were seven reports of ferries sailing with their bow doors open before the “Herald of Free Enterprise” went down. A young lady who left working for an outward bound centre in Dorset raised concerns about its practices, and a number of youngsters lost their lives some time later. I often refer to a young girl who was a student of 16. She had a job on a delicatessen counter in a major supermarket where she discovered that the manager was changing the sell-by dates on cooked meats and other things, putting public health at risk.

There are many cases which I am sure we could all repeat, so we need not put a further barrier in the way of people blowing the whistle when something is wrong. Given that Clause 15 proposes a public interest, it would be simpler to remove the good faith test entirely. This amendment would, in effect, be a counterbalance to Clause 15. I beg to move.

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[Lord Marland]

My Lords, a lot of what has been said was said in relation to the previous amendments. I am struck by the remark of the noble Lord, Lord Touhig, about the Public Interest Disclosure Act being looked at again. I had probably better be careful what I say but if I blink it is in sympathy. That is not for this Bill or for this moment, but it is a valid point. I am grateful for everything that the noble Lord, Lord Low of Dalston, said as well.

As I said earlier, we are in a number of discussions with the noble Lord, Lord Touhig, and Public Concern at Work, within which we would be happy to embrace the noble Lord, Lord Wills. We are coming up with a form of words that is going through the ministerial process for approval at the moment. The form of words that we desire has been agreed, in principle, between the two groups but it needs ministerial sign-off. We will be going through that process before I can be clearer on that issue. On the subject of Dame Janet Smith’s report, we do not reject her findings at all. We believe that motive is a relevant issue and we are also working with Public Concern at Work on that.

Both these amendments are worthy of consideration and we are considering them, as we are the previous amendments. If I can slightly keep my powder dry for the moment, I am not able to give the Committee a concrete answer except that it is going through the appropriate channels to try and resolve the issue. In the next few weeks—before Christmas, I hope—I may be able to discuss with noble Lords the outcome and agree a way forward, which will help us by the time we get to Report. On that basis, I hope that the noble Lord will withdraw his amendment.

[Lord Touhig]

My Lords, again, I am grateful to colleagues who took part in the debate and in particular to the Minister for his response. It is the season of good will; I am sure that we may have some further good will before we reach Christmas itself but I have no doubts that there is a willingness on all sides to work together here to try to make better legislation. When I had a Private Member’s Bill, I certainly found that the more pre-legislative scrutiny we had the better Bills we made. The way that we are debating this, at the end of the day, better legislation will be coming out of it where whistleblowers are concerned. With those few remarks, I beg leave to withdraw my amendment.

Amendment 23 withdrawn.