A guide to PIDA

Public Interest Disclosure Act 1998

Originally published by Sweet & Maxwell in its series Current Law Statutes, this edition sets out the revised and amended text of the Public Interest Disclosure Act 1998. Authoritative notes - originally drawn on background papers and parliamentary debates - have been fully updated and now take account of an extensive review of one hundred legal decisions made under the Act.

Part 1 was updated at January 2007 and can be downloaded as the summary and guide to the Act. It describes the background to the legislation, how it was intended to work and includes guidance on whistleblowing arrangements and practical tips for workers, organisations and their advisers.

Part 2 is the text of the Act with annotations. This was published in Feb 2003 and the case law is accurate at that date. Inevitably there have been several important legal decisions on the Act and an update on many of these decisions can be found here and a note on the decisions on the meaning of "in good faith" can be found here.

Sections 17-20 of the Enterprise and Regulatory Reform Act 2013 have introduced a series of changes to the Public Interest Disclosure Act 1998:
Section 17 narrows the definition of 'protected disclosure' to those that are made in the 'public interest'.
Section 18 removes the requirement that a worker or employee must make a protected disclosure 'in good faith'. Instead, tribunals will have the power to reduce compensation by up to 25% for detriment or dismissal relating to a protected disclosure that was not made in good faith.
Section 19 introduces protection for whistleblowers from bullying or harassment by co-workers. 
Section 20 enables the Secretary of State to extend the meaning of 'worker' for the purpose of defining who comes within the remit of the whistleblowing provisions. 

Please see our briefing for further information on the changes to PIDA 1998 in light of the Enterprise and Regulatory Reform Act 2013.

PUBLIC INTEREST DISCLOSURE ACT 1998

Annotated guide from Public Concern at Work

PART 1

CONTENTS

PART 2

Public Interest Disclosure Act

Section 1

ERA s.43A
Meaning of Protected Disclosure (with ref to Employment Act 2002)

ERA s.43B
Disclosures qualifying for protection

ERA s.43C
Disclosure to employer or other responsible person

ERA s.43D
Disclosure to legal adviser

ERA s.43E
Disclosure to Minister of the Crown

ERA s.43F
Disclosure to prescribed person

ERA s.43G
Disclosure in other cases

ERA s.43H
Disclosure of exceptionally serious failure

ERA s.43J
Contractual duties of confidentiality

ERA s.43K
Extension of meaning of "worker"

ERA s.43KA
Application of this Part and related provisions to police

ERA s.43L
Other interpretative provisions

Section 2
Right not to suffer detriment

Section 3
Complaints to employment tribunal

Section 4
Limit on amount of compensation

Section 5
Unfair dismissal

Section 6
Redundancy

Section 7
Exclusion of restrictions on right not to be unfairly dismissed

Section 8
Compensation for unfair dismissal

Section 9
Interim relief

Section 10
Crown employment

Section 11
National Security

Section 12
Work outside Great Britain

Section 13
Police Officers

Section 14
Remedy for infringement of rights

Section 15
Interpretative provisions of 1996 Act

Section 16
Dismissal of participants taking unofficial industrial action

Section 17
Corresponding provision for Northern Ireland

Section 18
Short title, interpretation, commencement and extent

INTRODUCTION

"All organisations face the risks of things going wrong or of unknowingly harbouring malpractice. Part of the duty of identifying such a situation and taking remedial action may lie with the regulatory or funding body. But the regulator is usually in the role of detective, determining responsibility after the crime has been discovered. Encouraging a culture of openness within an organisation will help: prevention is better than cure. Yet it is striking that in the few cases where things have gone badly wrong in local public spending bodies, it has frequently been the tip-off to the press or the local Member of Parliament - sometimes anonymous, sometimes not - which has prompted the regulators into action. Placing staff in a position where they feel driven to approach the media to ventilate concerns is unsatisfactory both for the staff member and the organisation."

Committee on Standards in Public Life

Second Report, Cm 3270 -1 (May 1996) p. 21

These words from the Nolan Committee were said [1] to best summarise the purposes of the Public Interest Disclosure Act which, it should be stressed applies across the private and voluntary sectors as well as to public bodies [2]. During the Bill’s passage, Lord Nolan stated that his Committee had been persuaded of the urgent need for protection for public interest whistleblowers and he commended those behind the Bill "for so skilfully achieving the essential but delicate balance in this measure between the public interest and the interests of employers" [3].

To achieve such a balance, the Act sets out a framework for public interest whistleblowing, which protects workers from reprisal because they have raised a concern about malpractice. Though the Act is part of employment legislation, its scope is wide and no qualifying periods or age limits restrict the application of its protection (s.7).

Only a disclosure that relates to one of the broad categories of malpractice can qualify for protection under the Act. These include (s.1, s.43B) concerns about actual or apprehended breaches of civil, criminal, regulatory or administrative law; miscarriages of justice; dangers to health, safety and the environment; and the cover-up of any such malpractice. Cast so widely, and with its emphasis on the prevention of the malpractice, and with the guarantee of full compensation, the Act requires the attention of every employer in the UK. While the main issues for practitioners and their clients are set out at the end of this General Note, the key issue for employers will be to reduce any risk of creating grounds for protected public disclosures. Such steps will include (a) introducing, reviewing and refreshing a whistleblowing policy; (b) promoting the policy effectively; (c) ensuring that the workforce understands that victimisation for whistleblowing is not tolerated; and (d) making it clear that reporting malpractice to a prescribed regulator is acceptable.

The most readily available protection under the Act (s.1, s.43C) is where a worker, who is concerned about malpractice, raises the matter within the organisation or with the person responsible for the malpractice. The purpose of this provision is to reassure workers that it is safe and acceptable for them to raise such concerns internally. It is thereby more likely that those in charge of the organisation (a) will be forewarned of potential malpractice, (b) will investigate it, and (c) will take such steps as are reasonable to remove any unwarranted danger. In this way, the Act aims to deter and facilitate the early detection of malpractice. Additionally, this approach furthers the principle of accountability because - should the concern subsequently prove to be well founded - the law can more readily hold people to account for their actions where it can be shown they had actual (as opposed to constructive or implied) notice of the malpractice.

As the short title makes clear, the Act (s.1 ss. 43E to 43H) also sets out the circumstances where the disclosure of the malpractice outside of the organisation is in the public interest and should be protected. In these provisions, the Act adopts and develops many of the signposts from the common law on whether particular information may, notwithstanding the fact it is confidential, lawfully be disclosed in the public interest. Before touching on the relationship between these new statutory provisions and the common law principles, there are two important points. First, the Act applies to all information, whether confidential or not. Secondly while it draws on the common law, it should be noted that these cases focused on whether the confidential information might itself be published (usually by a newspaper) or disclosed to a regulator, rather than whether the whistleblower who made that public interest disclosure should be protected from reprisal or sanction.

In some circumstances, the Act may impose requirements additional to those in the law of confidence. For a disclosure to be protected, (a) the whistleblower must make the disclosure in good faith; (b) as to all external disclosures, he needs to show some substantive basis for his belief; and (c) as to wider public disclosures - unless there is some legitimate reason why not - the concern should have been raised internally or with a prescribed regulator first. In other respects - such as factors to be weighed in deciding whether a wider public disclosure was reasonable under ss.43G and 43H - the Act requires tribunals to have regard to matters which are also considered at common law. While relevant cases from the law of confidence may provide helpful guidance to tribunals, they are not binding. Indeed the Act only requires tribunals to consider duties of confidence where the disclosure was in breach of a duty of confidence which was owed to a third party by the employer: s.43G(3)(d). For a comprehensive analysis of the case law in this area, the reader is referred to Dr Y Cripps’ monograph The Legal Implications of Disclosure in the Public Interest, 2nd ed. (Sweet and Maxwell, London, 1994) and, more generally, to Toulson & Phipps Confidentiality (Sweet & Maxwell, London, 1996).

BACKGROUND

The Act was introduced as a Private Member’s Bill and promoted in the Commons by the Conservative MP Mr Richard Shepherd and in the Lords by the Labour peer Lord Borrie QC. It received strong support from the Government. The protection forms part of employment legislation and was put forward in the Fairness at Work White Paper (May 1998) Cm 3968 as one of the key new rights for individuals. However, it was primarily recognised as a valuable tool to promote good governance and openness in organisations, as can be seen not only from the Parliamentary debates on the Bill but from the references to it in the White Papers on Freedom of Information Your Right to Know (Dec. 1997) Cm 3818 and on Modern Local Government (July 1998) Cm 4014 and also in ministerial guidance to the NHS (Freedom of Speech in the NHS, letter from Health Minister to NHS Trust Chairs, 25 Sept. 1997). It was mostly on account of these wider implications for governance and their relevance across all sectors that the legislation received broad support from the Confederation of British Industry, the Institute of Directors and all key professional groups.

The legislation was closely linked to the work of the whistleblowing charity, Public Concern at Work, publishers of this text. Public Concern at Work was launched in 1993 by the author of these notes, Guy Dehn, under the guidance of, inter alia, Lord Borrie QC, the Rt. Hon. Lord Oliver of Aylmerton, Ross Cranston QC (lately the Solicitor General), Maurice Frankel (director of the Campaign for Freedom of Information) and Marlene Winfield (a health policy analyst). The present Chairman of Trustees is Michael Smyth, (litigation partner and head of public policy at Clifford Chance). Michael Brindle QC heads the Advisory Council, having succeeded the late Sir Ralph Gibson (a former head of the Law Commission and Appeal Court judge).

The background to the Act lies in the analysis by Public Concern at Work of a spate of scandals and disasters in the 1980s and early 1990s. Almost every public inquiry found that workers had been aware of the danger but had either been too scared to sound the alarm or had raised the matter in the wrong way or with the wrong person.

Examples of the former included:

  • the Clapham Rail crash (where the Hidden Inquiry heard that an inspector had seen the loose wiring but had said nothing because he did not want ‘to rock the boat’),
  • the Piper Alpha disaster (where the Cullen Inquiry concluded that "workers did not want to put their continued employment in jeopardy through raising a safety issue which might embarrass management"), and
  • the collapse of BCCI (where the Bingham Inquiry found an autocratic environment where nobody dared to speak up).

Examples of where the concern was raised but not heeded included:

  • the Zeebrugge Ferry tragedy (where the Sheen Inquiry found that staff had on five occasions raised concerns that ferries were sailing with their bow doors open),
  • the collapse of Barings Bank (where the regulator found that a senior manager had failed to blow the whistle loudly or clearly), and
  • the Arms to Iraq Inquiry (where the Scott Report found that an employee had written to the Foreign Secretary to tell him that munitions equipment was being unlawfully produced for Iraq).

Similar messages have come out of the inquiries into the abuse of children in care (over 30 reports of concern were ignored about the serial sex abuser Frank Beck) and investigations into malpractice in the health service. Two recent examples from the NHS are the Kennedy Inquiry into the high mortality rate amongst babies undergoing heart surgery at the Bristol Royal Infirmary and Dame Janet Smith’s Inquiry into the serial killer Dr Harold Shipman.

Those behind Public Concern at Work took the view that such communication breakdowns were also likely to be a relevant issue in many of the thousands of accidents and frauds which caused death, serious injury and loss but which did not, because of their more modest scale, justify a public or judicial inquiry.

Dr Tony Wright, an independent minded Labour MP, first initiated the idea of a legislative framework for public interest whistleblowing in a promotional Ten Minute Rule Bill in 1995. He approached Public Concern at Work and the Campaign for Freedom of Information and asked if they would prepare a draft Bill. After its publication, it received broad support from all key interest groups. As a result, the Labour MP, Don Touhig introduced a revised bill in 1996, after he won a place in the private members’ ballot. Although that Bill was unsuccessful, it had been strongly supported in and out of Parliament. Tony Blair MP - then leader of the Opposition - pledged that a future Government of his would introduce whistleblowing legislation on the same lines.

Within a few weeks of the election of Mr Blair’s government in 1997, Public Concern at Work and the Campaign for Freedom of Information were asked by ministers to promote the Bill again through the private members’ ballot. Conservative MP Richard Shepherd MP, a leading campaigner for openness and supporter of the earlier bills, was successful in the ballot. He used his place to introduce the Bill which became the Public Interest Disclosure Act. The Bill was championed for the Government by Department of Trade and Industry Minister Ian McCartney MP. Following consultation on the measures – undertaken by Public Concern at Work on behalf of the Government and Mr Shepherd – the Bill passed through Parliament supported by all sides. While the legislation would never have been enacted without the support of the new Labour Government, the Act is unusual in the extent to which its scope and detail were settled outside of the machinery of government.

OVERVIEW OF THE PROVISIONS

Commencement

The Act came into force on July 2nd 1999 in Great Britain. Similar protection came into force on the 31st October 1999 in Northern Ireland.

Malpractice

The Act applies to people at work raising genuine concerns about crimes, civil offences (including negligence, breach of contract, breach of administrative law), miscarriages of justice, dangers to health and safety or the environment and the cover up of any of these. It applies whether or not the information is confidential and whether the malpractice is occurring in the UK or overseas.

Individuals covered

In addition to employees, it covers workers, contractors, trainees, agency staff, homeworkers, police officers and every professional in the NHS. The usual employment law restrictions on minimum qualifying period and age do not apply to this Act. It does not cover the genuinely self-employed (other than in the NHS), volunteers, the intelligence services or the armed forces.

Good faith

To be protected, most disclosures must be made in good faith. Essentially this means the disclosure is made honestly so that the concern can be addressed. Good faith can be vitiated where the disclosure is made for some other dominant improper motive.

Internal disclosures

A disclosure made in good faith to the employer (be it a manager or director) will be protected if the whistleblower has a reasonable belief the information tends to show that the malpractice has occurred, is occurring or is likely to occur. Where a third party or person is responsible for the malpractice, this same test applies to disclosures made to him. The same test also applies where someone in a public body whose leaders are appointed by ministers (e.g. the NHS and many ‘quangos’) blows the whistle direct to the sponsoring Department.

Regulatory disclosures

The Act makes special provision for disclosures to prescribed persons. These are regulators such as the Health and Safety Executive, the Inland Revenue and the Financial Services Authority. Such disclosures are protected where the whistleblower meets the tests for internal disclosures and, additionally, reasonably believes that the information and any allegation in it are substantially true and is relevant to that regulator.

Wider disclosures

Wider disclosures (e.g. to the police, the media, MPs, consumers and non-prescribed regulators) are protected if, in addition to the tests for regulatory disclosures, they are reasonable in all the circumstances and they are not made for personal gain.

A wider disclosure must also fall within one of four broad circumstances to trigger protection. These are that (a) the whistleblower reasonably believed he would be victimised if he had raised the matter internally or with a prescribed regulator; or (b) there was no prescribed regulator and he reasonably believed the evidence was likely to be concealed or destroyed; or (c) the concern had already been raised with the employer or a prescribed regulator; or (d) the concern was of an exceptionally serious nature.

Additionally for these public disclosures to be protected, the tribunal must be satisfied that the particular disclosure was reasonable. In deciding the reasonableness of the disclosure, the tribunal will consider all the circumstances, including the identity of the person to whom it was made, the seriousness of the concern, whether the risk or danger remains, and whether the disclosure breached a duty of confidence which the employer owed a third party. Where the concern had been raised with the employer or a prescribed regulator, the tribunal will also consider the reasonableness of their response. Finally, if the concern had been raised with the employer, the tribunal will consider whether any whistleblowing procedure in the organisation was or should have been used.

Protection

Where a whistleblower is victimised or dismissed in breach of the Act he can bring a claim to an employment tribunal for compensation. Awards are uncapped and based on the losses suffered. An element of aggravated damages can also be awarded. Presently where the whistleblower’s claim is for victimisation (but not dismissal) he may also be compensated for injury to feelings. Where the whistleblower is an employee and he is sacked, he may within seven days seek interim relief so that his employment continues or is deemed to continue until the full hearing.

Confidentiality clauses

Gagging clauses in employment contracts and severance agreements are void insofar as they conflict with the Act’s protection.

Secrecy offences

Where the disclosure of the information is found to be in breach of the Official Secrets Act or another secrecy offence, the whistleblower will lose the protection of the Public Interest Disclosure Act if (a) he has been convicted of the offence or (b) an employment tribunal is satisfied, to a high standard of proof approaching the criminal one, that he committed the offence.

Whistleblowing policies

Though the Act does not require organisations to set up or promote any particular whistleblowing policies, they are strongly recommended. The key elements of such arrangements, as endorsed by the Committee on Standards in Public Life (supra), are set out below.

GUIDANCE ON WHISTLEBLOWING ARRANGEMENTS

Since its launch under the chairmanship of Lord Nolan, the Committee on Standards in Public Life has continued to highlight the role whistleblowing plays "both as an instrument of good governance and a manifestation of a more open culture". Emphasising the important role whistleblowing can play in deterring and detecting malpractice and in building public trust, the Committee has explained:

"The essence of a whistleblowing system is that staff should be able to by-pass the direct management line, because that may well be the area about which their concerns arise, and that they should be able to go outside the organisation if they feel the overall management is engaged in an improper course."

In making this work, the Committee has said that "leadership, in this area more than in any other, is paramount" and that the promotion of the whistleblowing arrangements is critically important. The Committee has long distinguished a ‘real’ internal whistleblower from an anonymous leaker to the press and has recently stressed that the Public Interest Disclosure Act should be seen as a ‘backstop’ for when things go wrong and not as a substitute for an open culture.

Good Policy

The Committee has recommended that a whistleblowing policy should make the following points clear:

  • The organisation takes malpractice seriously, giving examples of the type of concerns to be raised, so distinguishing a whistleblowing concern from a grievance,
  • Staff have the option to raise concerns outside of line management,
  • Staff are enabled to access confidential advice from an independent body,
  • The organisation will, when requested, respect the confidentiality of a member of staff raising a concern,
  • When and how concerns may properly be raised outside the organisation (e.g. with a regulator), and
  • It is a disciplinary matter both to victimise a bona fide whistleblower and for someone to maliciously make a false allegation.

Good practice

In its most recent report the Committee "emphatically endorsed" additional elements of practice drawn from Public Concern at Work’s evidence that organisations should:

  • ensure that staff are aware of and trust the whistleblowing avenues;
  • make provision for realistic advice about what the whistleblowing process means for openness, confidentiality and anonymity;
  • continually review how the procedures work in practice;
  • regularly communicate to staff about the avenues open to them.

Responding to these recommendations on good practice in its White Paper of December 2005, the Government stated that it agreed "on the importance of ensuring that staff are aware of and trust the whistleblowing process, and on the need for the boards of public bodies to demonstrate leadership on this issue. It also agrees on the need for regular communication to staff about the avenues open to them to raise issues of concern".

Good audit

The Institute of Chartered Accountants in England and Wales has produced practical guidance for auditors and companies on the obligations in the revised Combined Code on Corporate Governance. Encouraging companies to follow our approach, the ICAEW recommends that boards reviewing their whistleblowing arrangements should ask the following questions:

  • Is there evidence that the board regularly considers whistleblowing procedures as part of its review of the system of internal control?
  • Are there issues or incidents which have otherwise come to the board’s attention which they would have expected to have been raised earlier under the company’s whistleblowing procedures?
  • Where appropriate, has the internal audit function performed any work that provides additional assurance on the effectiveness of the whistleblowing procedures?
  • Are there adequate procedures to track the actions taken in relation to concerns made and to ensure appropriate follow-up action has been taken to investigate and, if necessary, resolve problems indicated by whistleblowing?
  • Are there adequate procedures for retaining evidence in relation to each concern?
  • Have confidentiality issues been handled effectively?
  • Is there evidence of timely and constructive feedback?
  • Have any events come to the committee’s or the board’s attention that might indicate that a staff member has not been fairly treated as a result of their raising concerns?
  • Is a review of staff awareness of the procedures needed?

PRACTICAL POINTS

For employers and those who advise them, issues to bear in mind are:

  • employers should positively consider the benefits of introducing a whistleblowing policy. If they have one, they should review and refresh it and promote it effectively to staff;
  • employers should – whether or not as part of the policy - make it clear through the management line and across the organisation that it is safe and acceptable for workers to raise a concern they may have about malpractice;
  • where a worker raises a concern about malpractice, every effort should be made to ensure that the employer responds [and can show it has responded: s.43G(3)(e)] to the message, rather than shoots the messenger;
  • employers should recognise it is in their own interests to introduce and promote effective whistleblowing policies. This will not only help managers and staff separate the message from the messenger but will also reduce the likelihood that a public disclosure will be protected under the Act: s. 43G(3)(f);
  • where a protected disclosure has been made, employers should take all reasonable steps to try and ensure that no colleague, manager or other person under its control victimises the whistleblower: s.2;
  • where an employer is satisfied with its response to a concern but the worker is not, the employer should consider notifying the regulator as an alternative to finding itself in a protracted dispute with its worker;
  • the implications of the Act on confidentiality clauses [s.43J] in severance agreements and employment contracts should be borne in mind by advisers and their use by employers should be carefully reviewed;
  • employers should consider whether to revise their arrangements with key contractors to provide that those who work for key contractors have access to the employer’s whistleblowing policy insofar as the concern affects it;
  • disclosure to a prescribed regulator is protected [s.43F] whether or not the concern had first been raised internally. It is important to note that where the worker reasonably believes he will be victimised if he goes to a prescribed regulator, he will be entitled to protection if he makes a wider, public disclosure: s.43G (2)(a). Accordingly employers should make it clear that reporting concerns to a prescribed regulator is acceptable;
  • any attempt to suppress evidence of malpractice is now particularly inadvisable since (a) a reasonable suspicion of a ‘cover-up’ is itself a basis for a protected disclosure: s.43B(1)(f); (b) a disclosure to the media is more likely to be protected: s.43G(2)(b); and (c) there is less scope for keeping such matters private by a gagging clause: s.43J;
  • if the employer is a public body where at least one of its Board members is a ministerial appointee, it should have a policy which authorises and facilitates whistleblowing direct to the sponsoring department: s.43E;
  • depending on the employer’s particular business, it is advisable that - at a senior level – it reviews its relationship with any regulator prescribed in its key areas of activity; and
  • Board members and/or senior managers designated to handle whistleblowing issues should receive appropriate training.

For individuals and those who advise them, issues to bear in mind are:

  • while the Act covers most of the workforce there are a few notable exceptions; (see overview above);
  • if the worker is seeking to engineer a claim to protect himself or is seeking to use the Act to obtain or improve a settlement, it is most unlikely his disclosure will in law be protected;
  • if the worker seeks advice about how to raise a concern, it is suggested that making an initial disclosure under s.43C should be considered as the preferred step as the Act’s protection most readily applies here;
  • if the worker wishes to pursue a concern, it is suggested that making an external disclosure under s.43F or 43G should be considered as protection under 43C can be jeopardised if the concern descends into a dispute with the employer about its response to it;
  • the worker is likely to face real problems with causation [ss. 2, 5 and 6] if he blows the whistle anonymously. This is because for a worker to win protection the tribunal must be satisfied that the worker was victimised by the employer because (and hence the employer knew that) he had blown the whistle;
  • if the worker is to disclose information externally because of fear of victimisation or fear of a cover-up or because of the seriousness of the matter, it is suggested that disclosures to ministers [s.43E] and to prescribed regulators [s.43F] are considered first, even though a wider disclosure may also be protected [ss. 43G(2) and 43H];
  • if the worker is to make a public disclosure of information [s.43G or s.43H], there are two rules of thumb: (a) a disclosure to a body whose duty it is to investigate the malpractice is likely to be more readily protected; and (b) where the public interest will be equally protected by disclosures to two bodies, the disclosure which causes less damage to the employer is likely to be more readily protected;
  • as to media disclosures [ss.43G and 43H], these are more likely to be protected (a) where the information was not confidential; (b) where, if it was confidential, there is or was a cover-up and there is no prescribed regulator; (c) where less public disclosures had failed to secure a reasonable response; or (d) where the matter was exceptionally serious and the client can show the media was a reasonable recipient of the disclosure;
  • if the worker suffers victimisation short of dismissal, he is also protected [s.2];
  • if the worker is an employee and is dismissed, he can within the first seven days apply for an interim order [s.9] - though these are not readily granted; and
  • where a worker has a shopping list of concerns, an employment tribunal may take this as an indication that there is more to the case than public interest whistleblowing.

January 2007

Public Concern at Work

Suite 301

16 Baldwins Gardens

London EC1N 7RJ

PREFACE TO THE 2003 EDITION

This edition takes account of over three years of law and practice under the Public Interest Disclosure Act (PIDA). Data at the public Register of Employment Tribunals suggests that some 1200 PIDA claims were registered in the three years since July 1999 when the Act came into force. These claims have led to one Court of Appeal decision (and one of the Scottish Court of Session), five decisions of the Employment Appeal Tribunal and around one hundred full decisions of employment tribunals.

These decisions illustrate how the Act works and why it is important. The concerns that the whistleblowers had raised ranged from serious crimes and grave dangers to the trivial. The reprisals they suffered ranged from the outrageous to the non-existent. While the large majority of the cases involved internal whistleblowing, tribunals have readily protected disclosures to regulators. Five public disclosures - including two to the media - have also been protected. Aggravated damages have been awarded to several whistleblowers and in one case compensation of £50,000 was given for injury to feelings. While the largest tribunal award to date has been £805,000, it is understood that several cases have been settled for over a million pounds.

The PIDA decisions cited in these annotations should be of general interest as they contain practical guidance on how the Act is working in practice. They give valuable illustrations of what is and is not whistleblowing, of why the 'good faith' test exists and of what evidence is needed about the wrongdoing. As to causation, these cases help to make a key legal concept more readily understandable. They also show how the approach to causation works differently where the employee has been at work for less than one year. Taken as a whole the summaries provide an interesting insight into the respective cultures in the public, private and voluntary sectors. The summaries of the seventy notable PIDA decisions cited in this text can be found on the Public Concern at Work website.

Neither the number of tribunal decisions nor the millions of pounds awarded, however, are the correct means to assess the success of the Act. When Public Concern at Work promoted the legislation and Parliament passed it, the purpose was to embed a culture where employees would feel able to raise genuine concerns in a constructive way and employers would address any real danger or risk properly.

We know from our activities at Public Concern at Work that PIDA is having a beneficial effect in many workplaces and communities. The fact that well over two-thirds of the PIDA claims registered are settled is also evidence that the Act is working well in signalling how whistles can safely be blown and why employers should heed the message and not shoot the messenger.

Outside of the legal system, Government and Parliament have remained alert to the potential benefits of PIDA and have been ready to extend and consolidate them. In Parliament, the Police Reform Act 2002 was amended so police officers will soon be PIDA protected and the Employment Act 2002 was amended to ensure the new grievance regime does not undermine PIDA. In Government, the Department of Health's initial attempt to embed a responsible whistleblowing culture in the NHS appears to have fallen as much on stony as on fertile ground. Outside of Government, the most interesting regulatory initiative has come from the Financial Services Authority (see http://www.fsa.gov.uk/pubs/staff/staff_handbook.pdf ).

Overseas, the PIDA legislative framework for whistleblowing has been adopted in South Africa, followed in the Netherlands and endorsed by the OECD. The European Commission's internal rules - introduced after the resignation of the Commission prompted by the whistleblowing of Paul van Buitenen - attempted to take PIDA's approach but failed to protect wider, public disclosures and so, it appears, fail to give confidence in and outside the organisation. In the USA, following the collapse of Enron and WorldCom, legislation has been passed to protect corporate whistleblowers there for the first time.

For those readers who wish to know more about the background and scope of the legislation, Public Concern at Work's website ( http://www.pcaw.org.uk) contains a wealth of information and practical tips. It has examples and statistics from the 2500 whistleblowing concerns raised on our confidential helpline. It also contains policy papers and briefing documents; and information about the training and guidance we provide to organisations.

As well as Public Concern at Work's output, the Public Interest Disclosure Act has been considered in four monographs since it came into force in July 1999. These are John Bowers QC, Jack Mitchell & Jeremy Lewis Whistleblowing: the new law (Sweet & Maxwell, London, 1999); David Lewis Whistleblowing (Athlone Press, London 2000); Catherine Hobby Whistleblowing and the Public Interest Disclosure Act (Institute for Employment Rights, London 2001); and Lucy Vickers Freedom of Speech and Employment (OUP, Oxford, 2002).

Our intention is that this guide to the Act should be of practical assistance to layman, manager, lawyer and policy maker alike. If you have any suggestions about how we might improve it or PIDA, these will be welcome.

1st February 2003

Public Concern at Concern,
3rd Floor,
Bank Chambers,
6-10 Borough High Street,
London SE1 9QQ.
Tel- 020 3117 2520
Email- helpline@pcaw.org.uk

Public Interest Disclosure Act 1998