OPERATIONAL GUIDANCE

PUBLIC INTEREST DISCLOSURE ACT 1998

SUMMARY OVERVIEW

OG 79 A1-11 January 2007

Purpose: This guidance gives a brief overview of the Public Interest Disclosure Act 1998 (PIDA 1998) and its relevance to the Commission staff in terms of receiving and how we should treat those disclosures made to us and also in making disclosures. A longer summary of the main provisions of the Act can be found in C1 and more detail on how the Act will impact on the work of the Commission staff can be found in B1.

Divisional responsibility

For action:

All operational divisions

For information:

All staff

Contents

1. What is this Act about?
2. What can a worker make disclosures about?
3. To whom can the employee or worker make the disclosure?
4. Disclosures to the Charity Commission as a "prescribed person"
5. In what circumstances is a disclosure to us a "protected disclosure"?
6. What should our response be to a worker proposing to make a disclosure?
7. Treatment of disclosures
8. What if Commission staff want to make disclosures about the Commission?
9. Witnesses (Public Inquiries) Protection Act 1892

Meaning of expressions - list of Glossary terms used in this Guidance
Index to further related information

This OG deals with the protection for workers making disclosures introduced by the Public Interest Disclosure Act 1998. The Act mainly takes the form of amendments to the Employment Rights Act 1996 so the relevant provisions are actually in the 1996 Act. Throughout this guidance the Public Interest Disclosure Act 1998 is referred to as "the Act" or "this Act" or "PIDA 1998" and the Employment Rights Act 1996 is referred to as "the 1996Act".

1. What is this Act about?

1.1 Background
1.2 Disclosures required by statute
1.3 How does the Act give protection?

The Public Interest Disclosure Act 1998 (PIDA 1998) came into force on 2^nd July 1999. It mainly takes the form of amendments to the Employment Rights Act 1996.

It is designed to protect workers from detrimental treatment or victimisation from their employer if, in the public interest, they "blow the whistle" on wrongdoing.

It makes provision about:

• the types of disclosure that may be "qualifying disclosures";

• the circumstances in which such disclosures are "protected disclosures";

• the people who may benefit from the protection afforded by the Act; and

• how such a disclosure may be made.

(The Act affords protection to "workers", which is defined more widely than simply employees (see OG 79 C1 section 1). The remedies available to workers are not, however, identical to those available to employees (see OG 79 C1 section 2).

It is of direct relevance to the Charity Commission because:

PIDA 1998 extends to disclosures required by statute. Whilst the Act is not likely to be relevant to the statutory whistleblowing duties of charity auditors and independent examiners (because they are not likely to be "workers"), people who supply information to us in accordance with our other statutory information gathering powers may be protected.

New provisions are introduced by the Act to protect workers from action taken or which may be taken by their employer. (Under PIDA 1998, the term "worker" has a wider meaning then employee - for more detail see OG 79 C1 section 1.) For example:

• If an employee is dismissed, because he or she has made a protected disclosure, that will be treated as unfair dismissal.

• Workers are given a new right not to be subjected to "detriment" by their employers on the ground that they have made a protected disclosure.

• Workers may present a complaint to an employment tribunal if they suffer detriment as a result of making a protected disclosure.

2. What can a worker make disclosures about?

2.1 What are qualifying disclosures?
2.2 When would a worker making a qualifying disclosure not be protected by the provisions of the Act?

In relation to any organisation workers can make disclosures about certain kinds of matter which it is in the public interest to have disclosed in the knowledge that the law protects them from unfair treatment by their employer.

• a criminal offence;

• a breach of legal obligation;

• a miscarriage of justice;

• a danger to the health or safety of an individual;

• damage to the environment;

• deliberate concealment of information tending to show any of the above five matters.

• he or she held that belief; and

• it was reasonable to do so in the circumstances at the time of the disclosure;

When a worker makes a qualifying disclosure, he or she will be protected by the provisions of the Act if the disclosure is made under the right circumstances (see OG 79 C1 section 3).

However, there are some occasions when a worker would not be protected, for example:

• if, in making the disclosure, the worker commits a criminal offence (see OG 79 C1 section 3.3); or

• if the disclosure is made by a legal adviser when the information is subject to legal professional privilege (see OG 79 C1 section 3.5 for more detail).

The situation may arise where a worker makes a qualifying disclosure which is protected by virtue of the person to whom the disclosure is made and the circumstances in which it is made. In a rare case the person to whom the disclosure was made might subsequently reveal the same information to another body. It is up to that third party to take legal advice as to whether this second disclosure is protected under the provisions of the Act or not.

3. To whom can the employee or worker make the disclosure?

There are various persons to whom disclosures may be made ranging from the worker's employer through to the public media (see OG 79 C1 s.4). However there are certain requirements and specifications regarding to whom and how the disclosure should be made.

3.1 Does the worker have to approach his or her employer first?
3.2 Are there any specially appointed bodies to approach with a disclosure?
3.3 What if it is an exceptionally serious failure?

• There is no requirement in the Act for the worker to make the disclosure in the first instance to their employer although the question whether the disclosure was first made to the employer may be relevant when deciding whether a disclosure to another party, such as the media or another non-prescribed regulator, qualifies for protection - see OG 79 C1 section 5).

The worker may choose to make the disclosure to his or her employer or to another person within the organisation where the worker believes the failure relates solely to that person or to any matter for which that person has legal responsibility (see OG 79 C1 section 4.1). This may be useful as these people may be in a position to ensure that the concerns are dealt with quickly and by the person who is well placed to resolve the problem.

However this may not always be possible if the worker reasonably believes that as a result of raising the issue he or she may be subject to detriment. If this is the case then one of the other methods of making a disclosure may be more appropriate.

• Disclosure may be made to one of the "prescribed persons".

This is a person or body prescribed by the Secretary of State under The Public Interest Disclosure (Prescribed Persons) Order 1999 [SI 1999 No 1549] for the purpose of receiving such disclosures. Attached as a schedule to the Statutory Instrument is a list of the prescribed bodies and the matters which can properly be brought to the attention of these bodies. This list can be found on the HMSO website.

Different rules apply to protect qualifying disclosures where the relevant failure is of an exceptionally serious nature. The failure has to be, as a matter of fact, an exceptionally serious failure if the disclosure is to qualify for protection for people who are workers for the purpose of PIDA 1998 (that is Part IVA of the 1996 Act). For more detail about this see OG 79 C1 section 6.

4. Disclosures to the Charity Commission as a "prescribed person"

The Charity Commission is one of these prescribed bodies described in section 3.2 above and charity employees may make disclosures to us in respect of:

As a "prescribed person" we should be prepared to receive disclosures from workers employed by charities or those not employed but still working under a contract.

5. In what circumstances is a disclosure to us a "protected disclosure"?

When making a qualifying disclosure to the Commission as a prescribed person, the worker will be protected under the new clauses introduced into the 1996 Act if he or she:

• makes the disclosure in good faith;

• reasonably believes that the information and any allegations it contains are substantially true;

• reasonably believes that the matters fall within the description of matters for which the Commission is prescribed.

6. What should our response be to a worker proposing to make a disclosure?

It is in our interests as a regulatory body to encourage people to tell us of genuine concerns about the administration of charities. If we are approached by a worker who wishes to make a disclosure, but who is concerned whether he will be protected by the Act if he does so, we can explain that:

• we are, under The Public Interest Disclosure (Prescribed Persons) Order 1999, a "prescribed person" for matters relating to the proper administration of charities and of funds given or held for charitable purposes; and

• misconduct or mismanagement in the administration of charities involves the breach of a legal obligation as mentioned in section 43B(1)(b) of the 1996 Act.

• he or she reasonably believes that the information is true and that it shows that there has been some misconduct or mismanagement in the administration of a charity; and

• the disclosure is made in good faith, ie the worker should be genuinely concerned to protect the interests of the charity, and not have some selfish purpose of his/her own, such as a desire to protect himself/herself from the consequences of his/her own misconduct.

We should not assure the worker that he or she will in fact be protected under the Act. This is because we will not be in a position to judge whether or not the conditions for protection, which are set out in the Act, are satisfied.

7. Treatment of disclosures

In the normal course of our work we receive disclosures of information from the public. These include disclosures from workers. All disclosures should be treated alike, whether from a worker or from a member of the public.

PIDA 1998 does afford workers a greater degree of protection than they had under previous legislation and this may encourage more workers with information about wrongdoing to come forward. It is important that we handle all disclosures correctly in order to maintain credibility with disclosers and charities alike.

More detail about the mechanisms involved and how we handle these situations can be found in OG 79 B1.

8. What if Commission staff want to make disclosures about the Commission?

The protection afforded by PIDA 1998 applies to employees of the Charity Commission. In response to the legislation the Commission has put in place a "whistleblowing" procedure.

9. Witnesses (Public Inquiries) Protection Act 1892

Whistle-blowers who are not protected by this Act may be protected by the Witnesses (Public Inquiries) Protection Act 1892.

The 1892 Act only applies to information supplied to us in a section 8 inquiry, but, subject to that, its protection extends to people who are not "workers", and the only condition is that the information should have been supplied to us in good faith.

The 1892 Act makes it a criminal offence to victimise any person who has in good faith supplied inquiry information to us, but anyone convicted of the offence can also be ordered to pay compensation to the victim for the loss which he or she has suffered.

The following words and phrases are defined in the Glossary of Terms:

•

independent examiner

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