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prescribe alternative recipients.44 This reflects the fact that the most appropriate person to contact will depend upon the seriousness and sensitivity of
the issues involved and who is suspected of wrongdoing.
According to Section 43C(2) ERA 1996, workers are to be treated as having
made disclosures to their employer if they follow a procedure which the
employer has authorised, even if the disclosure is actually made to someone else
(for example, an independent person or organisation). In Brothers of Charity
Services v Eleady-Cole45 the worker raised a concern through a confidential
telephone support line operated by an Employee Assistance Programme
(EAP) on behalf of the employer. The EAT confirmed that the disclosure was
protected under Section 43C(2) ERA 1996 as the EAP was contracted to submit
anonymised information to the employer. Thus, both here and in the sections
outlined below PIDA 1998 provides employers with incentives to introduce
procedures for reporting concerns. However, it does not oblige them to do so.
In the light of recent health and safety disasters and financial scandals, it could
be argued that whistleblowing procedures should be mandatory.46
Workers who seek legal advice about concerns and reveal to their adviser
the issues about which a disclosure may be made are protected by Section 43D
ERA 1996. In these circumstances Section 43B(4)ERA 1996 provides that the
legal adviser is bound by professional privilege and cannot make a protected
disclosure. Unfortunately, PIDA 1998 does not create any advice-giving
agency. However, there is a case for establishing a specialist body to ensure
that advisory and counselling services are available and to educate the public
about the legitimacy of reporting concerns in a democratic society. Currently
the charity Public Concern at Work47 offers help and free legal advice but, like
many other charities, it has very limited resources.
By virtue of Section 43E ERA 1996, workers in Government -appointed
organisations are protected if they make a disclosure to a Minister of the
Crown rather than their legal employer. It is worth noting that the Minister,
like other designated recipients under PIDA 1998, has no duty to take any
action in relation to matters which may be disclosed. Nevertheless, those
who have knowledge of potential wrongdoing may be held liable for culpable
inaction under both the criminal and civil law, for example, in relation to
health and safety matters or environmental issues.
44. See Brown et al (2014).
45. [2002] EAT/0661/00.
46. This is required in the public sector in Ireland (Protected Disclosures Act 2014 Section 21),
Australia (Public Interest Disclosure Act 2013 Section 59) and New Zealand (Protected
Disclosures Act 2000 Section 11).other countries appear to cover the private sector as well,
for example, Serbia (Law on the Protection of Whistleblowers 2014) Article 16 and Malta
(Protection of the Whistleblower Act 2013 Section 12).
47. See the organisation's website at www.pcaw.co.uk.

http://www.pcaw.co.uk

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