Law and Modern Corporation in International Context: Whistleblowing - Term Paper Example

Whistleblowing Whistleblowing is the provision of information regarding illegal and underhand practices. Subsequent to several disasters and scandals, such as the North Wales child abuse, and the British Royal Infirmary heart operation, the Public Interest Disclosure Act 1998 (PIDA) was enacted. In these incidents, the workers had not disclosed the dangers, due to fear. The PIDA specifies a system for public interest whistleblowing. The Employment Rights Act 1996 (ERA) defines the parameters for protected disclosures, the manner of the permissible disclosure, and protects those who make certain disclosures to safeguard public interest. Such individuals are permitted to bring action against their victimisation. This Act covers agency staff, contractors, trainees, homeworkers and workers. However, it does not cover partners and members of limited liability partnerships. The PIDA modified the ERA, which legally protected workers from detriment resulting from revealing information about crimes, legal obligation violations, dangers to health and safety, and miscarriage of justice. In this context, dismissal of an employee is deemed unfair dismissal and not detriment. Such protection does not require completion of a specific period of employment. The requirements are; to act in good faith, to be convinced that the allegation is true, and presence of reasonable grounds to believe in the veracity of the information disclosed. Moreover, this Act describes whistleblowing as the disclosure of information regarding previous, current or perceived misconduct that has to be addressed with respect to criminal offence, noncompliance with legal obligations, miscarriages of justice, danger to the health and safety of any person, harm to the environment, or attempts to conceal any of these. The confidentiality or gagging clauses, in employment contracts or severance agreements that conflict with the PIDA are void. PIDA protection can apply even to those governed by the Official Secrets Act. As such, disclosures are protected by the law, only if they are made to the appropriate entity and in the prescribed manner. The law protects an employee who makes a qualified disclosure to his employer in good faith, or via the authorised procedures of the employer. Moreover, the employee can complain to the person responsible for employee’s area or work. Moreover, Section 43G of the ERA permits workers to make protected disclosures under certain circumstances. Such protection is accorded if the workers act in good faith. They reasonably believe that the information and any attendant allegation to be substantially true. They do not act for personal gain, and had disclosed the same to the employer or person specified under section 43F of the ERA. Such disclosure need not be made, when the employees could reasonably be subjected to a detriment on disclosing, or when the employer could destroy or conceal the evidence. Moreover, the employee has to act reasonably. These conditions apply to exceptionally serious wrongdoing disclosures, these have been addressed under Section 43H of the ERA. In addition, Section 47B of the ERA protects workers from subjection to detriment for making a protected disclosure. Workers, dismissed for making protected disclosures can claim under Section 47B of the ERA, if they are ineligible to claim under general unfair dismissal provisions. Moreover, Section 105(6A) of the ERA renders it inequitable to select employees who make protected disclosure for redundancy. Section 128 of the ERA provides for interim relief. As such, there is no limit to the amount of compensation to penalised makers of protected disclosures. The following discussion highlights incidents of whistleblowing. Employees have to inform their employers about work situations that pose imminent danger to health and safety. In Darnton v University of Surrey (2003), the EAT described a qualifying disclosure. Accordingly, it should have been reasonable for the worker to believe that the information disclosed was true. Moreover, in Bolton School v Evans (2007), one of the IT teachers was convinced that the school’s computer system was insecure. He brought this to the notice of the headmaster who ignored it. This IT teacher hacked the computer system as proof. He was disciplined for this and he claimed that this disciplinary action denoted constructive dismissal as per the whistleblowing provisions. The EAT rejected this and held that he had been disciplined for hacking the computer system and not for whistleblowing. It also opined that it breaking into the confidential records of the employer, expecting to discover related wrongdoing was illegal. Furthermore, in Flynn v Warrior Square Recoveries Ltd (2014), the Court of Appeal held that after the employer had withdrawn disciplinary proceedings and a defamation action, which automatically rendered the employee no longer subject to detriment. This related to a whistleblowing claim. In Gebremariam v Ethiopian Airlines Enterprise (2014), the claimant after being selected for redundancy, was the withdrawal of the redundancy notice. The EAT upheld the employee’s claim, as she had been selected for redundancy after making a protected disclosure. In Street v Derbyshire Unemployed Workers’ Centre (2004), the plaintiff, an employee of the defendant, had deep differences with one of the senior employees of the latter. She lodged a misconduct complaint, which could not be established. Subsequently, she was dismissed for breach of trust and gross misconduct. Her claim for unfair dismissal was rejected by the employment tribunal on the grounds that her disclosure was not in good faith. This was upheld by the Court of Appeal, which opined that the law protected individuals making disclosures in public interest. It was not the purpose of the law to facilitate resolution of personal hostilities. In addition, in Abertawe Bro Morgannwg University Health Board v Ferguson (2013), a general practitioner successfully claimed that her Local Health Board had subjected her to a detriment. This was due to its acts and failures to act on the ground that she had engaged in a protected disclosure. Moreover, Clyde and Co LLP and anor v Bates van Winkelhof, Court of Appeal (2012) related to a junior equity partner in a limited liability partnership. The Court of Appeal ruled that this junior equity partner, not being a worker, could not pursue a whistleblowing claim. Furthermore, in NHS Manchester v Fecitt and ors (2011), three employees received detrimental treatment from their colleagues for being whistleblowers. The Court of Appeal did not hold the employer vicariously liable for this detrimental treatment. Additionally, in Goode v Marks and Spencer plc (2010) the EAT held that a protected disclosure had not been made by an employee, who had opined about the change proposed by his employer. Moreover, in Kuzel v Roche Products Ltd (2008), the England and Wales Court of Appeal held that whistleblowing claims and discrimination had different approaches to the burden of proof. In this case, a dismissed employee claimed that her dismissal was the outcome of her protected disclosures. This did not compel the tribunal to determine whether this was the reason behind her dismissal, because the employer had failed to prove that her dismissal was for some other reason. The Hibbins v Hesters Way Neighbourhood Project (2008) ruling established that protection for whistleblowers extends to disclosures about the misdeeds of any legal entity. It is not restricted to the wrongdoings or omissions of the employer. From these decisions, it becomes obvious that the tribunals and courts support whistleblowers. However, there are certain rigid conditions that have to be satisfied for obtaining this support. Read More