Lewis, Bowers, Fodder and Mitchell, Whistleblowing: Law and Practice

Lewis, Bowers, Fodder and Mitchell, Whistleblowing: Law and Practice The first two editions established this work as the definitive source for both practitioners and academics, so expectations were very high for the third one. In this reviewer’s opinion, the authors are to be congratulated for presenting another definitive and broadly based book on this complicated and fast-moving topic. Much has happened in the field since the previous edition in 2012, and this is all carefully documented in the text. In order to illustrate the enormity of the task faced by the authors, some of the developments will be summarised. First, there have been important amendments to Part IVA Employment Rights Act 1996 (ERA 1996). In addition to the replacement of good faith by a public interest test to determine what a qualifying disclosure is, section 47B ERA 1996 introduces detailed provisions on both vicarious and personal liability for subjecting a person who makes a protected disclosure to a detriment. Perhaps less significant are the changes requiring prescribed persons to produce an annual report on disclosures made to them (section 43FA ERA 1996) and giving the Secretary of State the power to make regulations prohibiting NHS employers from discriminating against applicants ‘because it appears’ that they have made a protected disclosure (section 49B ERA 1996). Inevitably, this move to sectoral rather than national protection has been widely criticised. In terms of case law, the EAT has been active in relation to a range of issues, for example, what is a disclosure of information, how to determine the principal reason for dismissal and the territorial scope of Part IV ERA 1996. In addition, both the Supreme Court and the Court of Appeal have ruled on who is worker for the purpose of seeking a remedy for detriment or dismissal suffered after making a protected disclosure (see for example Jeanette Ashton, Whistleblowing Protection and Concurrent ‘Worker’ Status for a Junior Doctor: Day v Health Education England (2017) 46 ILJ 397). On the vital question of how the public interest test can be satisfied, the authors waited a long time for the Court of Appeal decision in Chesterton Global Ltd v Nurmohamed to emerge (see now [2017] IRLR 837) but eventually went to press without it. Nevertheless, 14 pages are devoted to the issues raised by this crucial case and an excellent job has been done in adverse circumstances. Third, there have been several developments internationally. In 2014 the Council of Europe recommended to its forty-seven Member States that they establish ‘a normative, institutional and judicial framework to protect individuals who, in the context of their work –based relationship, report or disclose information on threats or harm to the public interest’. The Recommendation contains a set of guiding principles not all of which seem to be reflected in the current UK legislation. In 2015 the UN Special Rapporteur on Freedom of Opinion and Expression (David Kaye) presented the first UN report to address in some depth the need for enhanced whistleblower protection. The report calls on the UN and member states to implement effective whistleblowing legislation and refers to relevant international norms and good practices, including the Tshwane Principles which provide guidance on the protection of national security whistleblowers. As readers of this journal will be aware, currently section 193 ERA 1996 states that workers in both the Security and Intelligence Services are not covered by Part IVA. More recently, the European Parliament has called on the Commission to propose EU legislation for the effective protection of whistleblowers (Resolution of 14 February 2017 [2016/2055 (INI)]) on the role of whistleblowers in the protection of the EU’s financial interests). The Commission has already published an Inception Impact Assessment which analyses the impact that a lack of whistleblower protection has on the EU market, human rights and the environment. Once the impact assessment process is complete, the Commission will decide whether and how to propose whistleblowing legislation. Finally, what has also emerged in recent years is the willingness of scholars to spend more time teaching and researching whistleblowing law and practice. This comprehensive and insightful work will be invaluable to both academic staff and their students, although its price may make it relatively inaccessible. Internationally researchers and institutions have been keen to examine the UK’s so-called ‘model’ whistleblowing statute and the authors have provided them with an excellent starting point for analysing its impact since it came into force in 1999. This edition is 50% larger than the previous version and has one replacement chapter as well as the four additional ones indicated below. Unsurprisingly, a chapter on the public interest test is substituted for the one on good faith, although good faith may still be discussed at tribunal in relation to the possible reduction of compensation that is awarded (section 123(6A)ERA 1996). Chapter 8 deals with the question of vicarious and individual liability and in chapter 12 developments in the health and financial services sector are considered. These industries have been selected because of their high profile in relation to whistleblowing arrangements, in particular, the pressure to appoint staff to serve as ‘champions’ on this topic. Chapter 13 deals with obligations to blow the whistle and reflects the fact that there may express and implied duties at common law as well as statutory and professional ones that affect some people. In Chapter 18 space is allocated to the potential impact of the European Convention on Human Rights on public interest disclosures. This Convention will be particularly important to those who suffer a detriment for whistleblowing but are not covered by Part IVA ERA 1996. For example, volunteers and others who rise concerns about wrongdoing but who are not treated as workers under Part IVA ERA 1996. This book should also be of interest to non-lawyers and, with them in mind, Chapter 19 focuses on whistleblowing rules, policies and procedures and what they should contain. In addition to drawing on empirical research and good practice guidelines, it provides a useful discussion about data protection in the light of the EU General Data Protection Regulation 2016 and outlines the pros and cons of providing financial incentives to potential whistleblowers. Finally, the appendices contain a practical case study, a digest of appellate whistleblowing cases as well as legal precedent forms. © Industrial Law Society; all rights reserved. For permissions, please e-mail: journals.permissions@oup.com. http://www.deepdyve.com/assets/images/DeepDyve-Logo-lg.png Industrial Law Journal Oxford University Press

Lewis, Bowers, Fodder and Mitchell, Whistleblowing: Law and Practice

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Publisher
Oxford University Press
Copyright
© Industrial Law Society; all rights reserved. For permissions, please e-mail: journals.permissions@oup.com.
ISSN
0305-9332
eISSN
1464-3669
D.O.I.
10.1093/indlaw/dwx030
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Abstract

The first two editions established this work as the definitive source for both practitioners and academics, so expectations were very high for the third one. In this reviewer’s opinion, the authors are to be congratulated for presenting another definitive and broadly based book on this complicated and fast-moving topic. Much has happened in the field since the previous edition in 2012, and this is all carefully documented in the text. In order to illustrate the enormity of the task faced by the authors, some of the developments will be summarised. First, there have been important amendments to Part IVA Employment Rights Act 1996 (ERA 1996). In addition to the replacement of good faith by a public interest test to determine what a qualifying disclosure is, section 47B ERA 1996 introduces detailed provisions on both vicarious and personal liability for subjecting a person who makes a protected disclosure to a detriment. Perhaps less significant are the changes requiring prescribed persons to produce an annual report on disclosures made to them (section 43FA ERA 1996) and giving the Secretary of State the power to make regulations prohibiting NHS employers from discriminating against applicants ‘because it appears’ that they have made a protected disclosure (section 49B ERA 1996). Inevitably, this move to sectoral rather than national protection has been widely criticised. In terms of case law, the EAT has been active in relation to a range of issues, for example, what is a disclosure of information, how to determine the principal reason for dismissal and the territorial scope of Part IV ERA 1996. In addition, both the Supreme Court and the Court of Appeal have ruled on who is worker for the purpose of seeking a remedy for detriment or dismissal suffered after making a protected disclosure (see for example Jeanette Ashton, Whistleblowing Protection and Concurrent ‘Worker’ Status for a Junior Doctor: Day v Health Education England (2017) 46 ILJ 397). On the vital question of how the public interest test can be satisfied, the authors waited a long time for the Court of Appeal decision in Chesterton Global Ltd v Nurmohamed to emerge (see now [2017] IRLR 837) but eventually went to press without it. Nevertheless, 14 pages are devoted to the issues raised by this crucial case and an excellent job has been done in adverse circumstances. Third, there have been several developments internationally. In 2014 the Council of Europe recommended to its forty-seven Member States that they establish ‘a normative, institutional and judicial framework to protect individuals who, in the context of their work –based relationship, report or disclose information on threats or harm to the public interest’. The Recommendation contains a set of guiding principles not all of which seem to be reflected in the current UK legislation. In 2015 the UN Special Rapporteur on Freedom of Opinion and Expression (David Kaye) presented the first UN report to address in some depth the need for enhanced whistleblower protection. The report calls on the UN and member states to implement effective whistleblowing legislation and refers to relevant international norms and good practices, including the Tshwane Principles which provide guidance on the protection of national security whistleblowers. As readers of this journal will be aware, currently section 193 ERA 1996 states that workers in both the Security and Intelligence Services are not covered by Part IVA. More recently, the European Parliament has called on the Commission to propose EU legislation for the effective protection of whistleblowers (Resolution of 14 February 2017 [2016/2055 (INI)]) on the role of whistleblowers in the protection of the EU’s financial interests). The Commission has already published an Inception Impact Assessment which analyses the impact that a lack of whistleblower protection has on the EU market, human rights and the environment. Once the impact assessment process is complete, the Commission will decide whether and how to propose whistleblowing legislation. Finally, what has also emerged in recent years is the willingness of scholars to spend more time teaching and researching whistleblowing law and practice. This comprehensive and insightful work will be invaluable to both academic staff and their students, although its price may make it relatively inaccessible. Internationally researchers and institutions have been keen to examine the UK’s so-called ‘model’ whistleblowing statute and the authors have provided them with an excellent starting point for analysing its impact since it came into force in 1999. This edition is 50% larger than the previous version and has one replacement chapter as well as the four additional ones indicated below. Unsurprisingly, a chapter on the public interest test is substituted for the one on good faith, although good faith may still be discussed at tribunal in relation to the possible reduction of compensation that is awarded (section 123(6A)ERA 1996). Chapter 8 deals with the question of vicarious and individual liability and in chapter 12 developments in the health and financial services sector are considered. These industries have been selected because of their high profile in relation to whistleblowing arrangements, in particular, the pressure to appoint staff to serve as ‘champions’ on this topic. Chapter 13 deals with obligations to blow the whistle and reflects the fact that there may express and implied duties at common law as well as statutory and professional ones that affect some people. In Chapter 18 space is allocated to the potential impact of the European Convention on Human Rights on public interest disclosures. This Convention will be particularly important to those who suffer a detriment for whistleblowing but are not covered by Part IVA ERA 1996. For example, volunteers and others who rise concerns about wrongdoing but who are not treated as workers under Part IVA ERA 1996. This book should also be of interest to non-lawyers and, with them in mind, Chapter 19 focuses on whistleblowing rules, policies and procedures and what they should contain. In addition to drawing on empirical research and good practice guidelines, it provides a useful discussion about data protection in the light of the EU General Data Protection Regulation 2016 and outlines the pros and cons of providing financial incentives to potential whistleblowers. Finally, the appendices contain a practical case study, a digest of appellate whistleblowing cases as well as legal precedent forms. © Industrial Law Society; all rights reserved. For permissions, please e-mail: journals.permissions@oup.com.

Journal

Industrial Law JournalOxford University Press

Published: Mar 1, 2018

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