Whistleblowing and gagging clauses

This briefing provides an overview of protection under the Employment Rights Act 1996 for workers who disclose information about malpractice at their workplaces.

Whistleblowing law protects workers who disclose information about malpractice at their workplaces, or former workplaces, provided certain conditions are met.  The conditions concern the nature of the information disclosed and the person to whom it is disclosed.  If these conditions are met, the law protects the worker from suffering detriment as a result of having made the disclosure.  If the conditions are not met a disclosure may constitute a breach of the worker’s duty of confidence to his employer.  

Prescribed persons

Aside from disclosure to his or her employer, one of the principal ways in which a worker may disclose information is to a “prescribed person”.  

The prescribed persons are set out in the Public Interest Disclosure (Prescribed Persons) Order 1999 (SI 1999/1549), and are bodies responsible for the regulation of various activities, eg the Audit Commission; the Civil Aviation Authority; Director General of Fair Trading; the Environment Agency; etc.  

In order for the disclosure to be protected, the worker must reasonably believe that the information disclosed relates to a matter for which the prescribed person is responsible (eg disclosure to the Environment Agency about acts which have an effect on the environment).

Disclosure to MPs

As of 6 April 2014 Members of Parliament were included within the list of prescribed persons, by the Public Interest Disclosure (Prescribed Persons) (Amendment) Order 2014 (SI 2014/596).  

Provided other relevant conditions are satisfied, a disclosure may be made to an MP about any matter for which another prescribed person is prescribed (eg about acts which have an effect on the environment, for which the Environment Agency is prescribed; matters affecting aviation, for which the Civil Aviation Authority is prescribed; etc.).  For further information, see the Library’s briefing on Whistleblowing to MPs.

Gagging clauses

A “gagging clause” is a clause in an employment contract or compromise agreement which purports to prohibit a worker from disclosing information about his current or former workplace.   A compromise agreement is a contract concluded at the end an employment relationship that seeks to prevent future disputes.  Typically, it is accompanied by a payment to the worker.  A gagging clause is unenforceable in so far as it purports to preclude a worker from making a protected disclosure.

Background

The Public Interest Disclosure Act 1998 started life as a Private Members’ Bill, introduced by a Conservative Member, Richard Shepherd MP, on 18 June 1997 and supported by the Labour Government.  It received Royal Assent on 2 July 1998 and came into force a year later.  The Public Interest Disclosure Act 1998 amended the Employment Rights Act 1996 to protect individuals from suffering detriment as a result of having made a “protected disclosure”. 

Subsequent changes to the law

Whistleblowing law has been amended since the Public Interest Disclosure Act 1998, by the Enterprise and Regulatory Reform Act 2013 and the Small Business, Enterprise and Employment Act 2015.

The 2013 Act, among other things, introduced a public interest test.  In order to benefit from whistleblower protection a disclosure must “in the reasonable belief of the worker making the disclosure” be “made in the public interest”. 

The 2015 Act created a power for the Secretary of State to impose reporting requirements on prescribed persons (bodies to which whistleblowers may disclose information).  It is envisaged that these requirements would cover matters such as the number of whistleblowing disclosures received and investigated.