My Lords, the amendment is an alternative to the public interest test proposed by the Government. The advantage of the amendment is that it deals with the Parkins v Sodexho Ltd points directly by narrowing the breach of legal obligations category at Section 43B(1)(b) of the Employment Rights Act 1996. This is a better solution than the Government’s proposal, as the public interest test is likely to lead to satellite litigation as courts are left to consider what is and what is not in the public interest.
The amendment was proposed by Ian Murray MP during Committee in the Commons, but was rejected. During the Commons Committee, Norman Lamb MP, serving as the Parliamentary Under-Secretary of State for Employment Relations, Consumer and Postal Affairs, objected to the proposal on three grounds: first, that there can be private contractual rights that it is in the public interest to cover; secondly, that the public interest test is needed because the abuse of the whistleblowing provisions is commonplace; and, thirdly, that the proposal will stop workers from gaining protection for trivial breaches of health and safety.
The first point shows a fallacy in the Government’s argument, as it seems to suggest that there are private employment rights that it is in the public interest to cover, therefore undermining the need to have the Government’s test.
The Government state that the provision is being widely misused. There has not been consultation on the issue, and all evidence is anecdotal. Although the Parkins v Sodexho Ltd point may have led to some individuals misusing the legislation, the Government’s approach is worrying. They overestimate the scale of the problem. Whistleblowing claims lodged with the Employment Tribunal Service account for less than 1% of all claims. During the Scrutiny Committee, Public Concern at Work provided evidence to show that during 2009-10, only 35 judgments involved a Parkins v Sodexho Ltd point out of 464 substantive judgments.
Thirdly, the point about triviality is misguided. The purpose of PIDA is to prevent a disaster and to encourage workers to speak up when they have suspicions. Issues that at one point seemed trivial may in fact be indicative of underlying problems in an organisation and could be the tip of the iceberg. A public interest test may have the unintended consequence of focusing on how big the disaster is or was likely to be and mean
less focus on reporting early suspicions. Issues such as missed medication in a care home may seem relatively minor compared to a multi-million pound fraud, such as that in the high-profile Olympus case, but the former could be a matter of life and death.
Moreover, the test builds the perception of barriers in the protection of whistleblowers. When that is added to the fact that PIDA is little known and often misunderstood, we believe that the legislation will be undermined by that approach. It will also add to the idea promulgated in the media that if you are a whistleblower, you will be burned and that the law is too complicated to protect you.
In sectors such as health and care, where whistleblowing can save lives and taxpayers’ money, and where gagging clauses and hierarchical professions and workplaces impose real obstacles for the individual, such an amendment will be seen as another obstacle. The honest and reasonable whistleblower, faced with an increasingly complex piece of legislation to navigate, should they be poorly treated, may not choose to speak up. That is a rather damning and worrying position, nearly two decades on from the Bristol Royal Infirmary inquiry, when the whistleblower, Dr Stephen Bolsin, was forced to leave the UK to find work. That shows the pressures on whistleblowers in difficult and sensitive situations. I beg to move.
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