Crime, Law & Social Change 27: 139163, 1997.

c 1997 Kluwer Academic Publishers. Printed in the Netherlands.

139

The British whistleblower protection bill

A shield too small?

WILLIAM DE MARIA
School of Social Work & Social Policy, The University of Queensland, Australia

Abstract. This paper critically examines the first attempt to offer general statutory protection
to United Kingdom whistleblowers. Despite some useful provisions, the paper concludes that
the bill is retrogressive, unsophisticated and narrow; and that it will be the legal profession not
employees of conscience who will benefit from this instrument if it passes into law.

Everyone has the right to freedom of expression. This right shall include freedom to hold
opinions and to receive and impart information and ideas without interference by public
authority and regardless of frontiers.
Article 10 (1)
European Convention on Human Rights
What sort of society is the law to reflect? If it can be an open society, then [whistleblowers] must be prepared to face the consequences of giving information to bodies . . .
protected as they will be by the promise of the body not to disclose its sources of information save when compelled by law in subsequent legal proceedings to do so, and by the
defence of qualified privilege available to them in the event of a defamation suit. If it be
a society in which as a general rule [whistleblowers] may invoke the public interest to
protect their anonymity the law may be found to encourage a Star Chamber world wholly
alien to the English tradition.
Scarman LJ
D v. National Society for the Prevention of Cruelty to Children

Introduction
Suppression of information and dissent are as British as fish and chips.1
Paradoxically cross-weaved into the fabric of public life, they context the
Whistleblower Protection Bill 1995 (UK), introduced in that year into the
House of Commons. If it survives politically, the measure of the bill will be
its capacity to meet this despotic history face to face. In a very real sense
the bill should be principled on a note of urgency: it is (or should be) part

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of a rescue mission on behalf of the public interest, long compromised by

draconian secrecy traditions and the demonization of dissent.2 Because of
its contextual importance I will elaborate this opening position through two
examples. From there in a section entitled The Bill Revealed the bill will
be critically examined clause by clause. Finally in The Bill: New Deal, the
features missing from the bill will be considered in the spirit of assisting the
necessary re-drafting.
In 1954, one hundred years after the Turkish Viceroy authorized the formation of a company to construct the Suez Canal, Gamal Nasser assumed
presidential powers in Egypt, and Anthony Eden became British Foreign Secretary. A year later Eden was Prime Minister, having succeeded Churchill.
Eden soon concluded that Nasser was a menace to British interests, and in
the words of his secretary, began to look around for means of destroying
him.3 In 1956 Nasser nationalized the Suez Canal. England, France and
Israel immediately planned a military response to Nassers action.4 Between
them they developed a covert plan of aggression against Nasser that clearly
breached international law, offended local public opinion and led to longconcealed war-atrocities, particularly by Israel.5 The terms of the plan were
intended to be highly confidential. In fact when Eden was told that the plan
had been committed to paper he was angered and dismayed and tried unsuccessfully to have all copies destroyed.6 Ultimately the Anglo-French invasion
was a failure and both countries were forced to accept a shameful withdrawal.
In 1983 a controversial delivery of Cruise missiles was made to the Royal
Air Force at Greenham Common.7 The then Secretary of Defence (Michael
Heseltine) wrote a secret memo to the Prime Minister of the day, Margaret
Thatcher, with copies going to five other senior ministers. Heseltines memo
called for official silence and a media-blockage until after the missiles were
in situ. This censorship was designed to minimize Opposition attacks and
demonstrations by protesters. Sarah Tisdall, a clerk in the Foreign Secretarys
Office, came across the memo and ethically disapproved of the envisaged
suppression of information. On 22 October she delivered anonymously a
photocopy of the memo to the Guardian, which published it nine days later. A
court-ordered return of the memo allowed the government to identify Tisdall.
She was charged with a breach of the Official Secrets Act and imprisoned for
six months.
In commenting recently on the House of Lords decision to affirm the Court
of Appeals rejection of the Guardians defence of Tisdall, Griffith has said:
The decision . . . shows, yet again, how reluctant are the courts to uphold
even statute-based protection against government powers when national
security is invoked.8

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In fact Griffith goes on to grimly conclude, after reviewing British judicial

attacks on public interest dissent during the 1980s, that:
. . . the low level of protest against [these] decisions shows the remarkable
extent to which the protection of freedom of speech has ceased to be a
political issue in the late twentieth century.9
If the current Whistleblower Protection Bill was in force in the 1950s, could
it have secured the protection of a British whistleblower privy to Edens
illegal intent? Similarly would Tisdall have been saved if this bill was active
when she was charged? Inhabiting these questions is the true test of the bill;
will it really protect British citizens who disclose in the public interest? Let
these questions suspend themselves over this paper, as I critically examine
the philosophy and structure of the Whistleblower Protection Bill 1995 (UK)
which was introduced into the House of Commons on 28 June 1995 by the
Labour MP for Canock and Burntwood Tony Wright.10
The bill revealed
Protection information
The bill lays down three seriatim tests for the content of disclosure to achieve
the legal status of protected information:
Information must be acquired in the course of employment. Employment
means: normal employer-employee arrangements, contractual arrangements, and generally the holding of any office.
Information so disclosed must tend to show that wrongdoing as listed
in the bills only schedule11 has occurred, or is imminent.
The alleged wrongdoing upon which information is given must be of
such significance that its disclosure would be a defence in an action
for breach of confidence.
The stipulation that wrongdoing information must be secured through employment is important because this grounds the concept of whistleblowing. Huge
semantic disputes rage over the meaning of whistleblowing. Are police informants whistleblowers? Kids dobbing school bullies into the headmaster are
they whistleblowers? Are disgruntled or concerned ex-employees who publish
revealing memoirs (such as Spycatcher) rightfully regarded as whistleblowers? By contexting whistleblowing within concurrent workplace wrongdoing
the drafters have narrowed its meaning, and that cannot be a bad thing. However a warning light must flash here. A too precise statute-controlled definition of whistleblowing could overkill the sematic madness we experience at
present.

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The current bill is in no danger of doing that. It avoids a consolidated definition of whistleblowing altogether. We have to pick up the definition on the
run as it were, as we move through the bill. It seems you become a whistleblower within the context of the bill if you hold protected information and
communicate this protected information in such a way that a disclosure is
deemed to have occurred. This is messy and convoluted. It is a shame the bill
offers no definition of whistleblowing, such as the one currently embraced by
an Australian Senate inquiry into whistleblowing.12 Behind the bills failure
to statutorily define whistleblowing is a strong let the courts decide attitude.
Ill have more to say about this shortly.
On the positive side by couching employment in general terms the bill
extends itself into private sector wrongdoing. This is indeed an important
development because so much whistleblower legislation in other parts of the
world focuses only on public sector wrongdoing.13 Similarly the range of
wrongdoing in the schedule appears to be sufficiently wide to capture the
awesome range and versatility of corruption. However some of the wrongdoing categories have been worded in such a way that potential whistleblowers
are going to need legal advice as to what they mean. I doubt whether British
whistleblowers will know what constitutes a breach . . . of a legal obligation
for example.
Im sure British whistleblowers are also going to have trouble with the third
test which in effect makes protection dependent on a legal prediction that a
court would reject an action for breach of confidence against a discloser.14
This retrograde step puts whistleblower success in the hands of judges, or
worse, in the hands of management trying to second guess judges. Allowing
protection to spin on a breach of confidence hub makes the whole scheme
needlessly judicio-centric. Perhaps I have used the wrong metaphor here. This
is a wheel that is not going to spin efficiently and quickly. By including this
legalistic test the drafters have remained oblivious to the attacks on legalism
which has been a major feature of modern employment law in the United
Kingdom (especially at the industrial tribunal level).15 Whistleblowing is
too important, and dare I say too complex to become a new colony for
unreconstructed British law which appears to have nothing better to offer the
whistleblower seeking protection than confused or jaded case law on breach
of confidence.
In an introductory note to the bill, prepared by legal staff at the whistleblower legal centre Public Concern at Work (who incidentally were the major
drafters of the bill), we find this statement:
The Bill itself does not define or prescribe the exact situations when
and where a disclosure of confidential information will be in the public

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interest. Instead it leaves the courts to continue to apply this public interest
test to the particular circumstances of each case at its particular time.16
For the whistleblowers sake let us hope that the courts referred to here do not
include these with judicial views similar to the Court of Appeal judges who
decided D v. National Society for the Prevention of Cruelty to Children.17 In
that case Lord Denning (dissenting) said):
In holding the scales of Justice, the courts should not allow confidences
to be lightly broken. When information has been imparted in confidence
and particularly where there is a pledge to keep it confidential, the courts
should respect that confidence. They should in no way compel a breach
of it, save where the public interest clearly demands it and then only to
the extent that the public interest requires it.18
Dennings deference to confidence was mixed with the self-doubt of his brother
judge Pennycuick:
. . . this contention [for a wider interpretation of the public interest as
something beneficial to the community] would lay on the court the
duty of deciding in any given case where the public interest lies. This
is a function inappropriate to the court and indeed incapable of being
performed with the precision required in the administration of justice.
Different men hold different and often diametrically opposed views as to
what is in the public interest and the judge would find himself faced with
the duty of permitting or refusing disclosure according to an absolutely
uncertain criteria19. (emphasis added)
These judicial views make the abovementioned position of Public Concern
at Work somewhat disingenuous as the organization fails to signal to would
be whistleblowers that there are deep problems in the way British courts
have considered public interest disclosures, and a deep reluctance to disturb
confidence. One commentator who appears closer to the relevant case law has
observed:
The common law has recognized a just cause defence to an action for
breach of the duty of confidentiality where the disclosure was made in the
public interest and to an appropriate recipient . . . [The defence] applies
where the matter disclosed is of grave public concern, irrespective of
whether there has been any wrongdoing by the employer . . . However
there is much uncertainty as to exactly what might be matters of grave
public concern so that their disclosure is covered by the just cause
defence, and it might be argued that it is asking too much of the judiciary
to determine what it is the public has a right to know.20 (emphasis added)

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Public Concern at Work advances this position into the realm of critique:
Although the case law on public interest disclosure is some 150 years
old, (sic) the courts have not protected those making such disclosures
from punishment, and it is this that the Whistleblower Protection Bill will
change.21
Now the reader is really confused! How is it possible to reconcile leav[ing]
the courts to continue to apply this public interest test to the courts have
not protected those making disclosures from punishment? Perhaps readerconfusion is simply an artefact of drafter-perplexity!
It happens that we are right on top now of one of the most serious flaws
in the architecture of the bill. Why, with 150 years (sic) of court hostility to
whistleblowers, havent the drafters bitten the bullet and set out definitional
principles which clarify what constitutes disclosure in the public interest,
thereby taking this matter out of the courts once and for all?
Let me devote some time to exploring the judicial deficiencies in the management of the law of public interest immunity to disclosure, in order to
demonstrate how the bill has been built on a very unsound legal foundation.
The legal criteria to determine breach of confidence are not clear and beyond
contest. The only certainty here is the uncertainty produced by successive
and conflicting legal conventions about breach of confidence since it was first
litigated 140 years ago.22
Cripps focuses on this uncertainty when she says:
. . . [British] judges who have discussed and applied the public interest
defence to the action for breach of confidence have devoted little attention
to its conceptual origins and to the implications of those origins.23
Cripps goes onto say that judicial neglect of the concept of breach of confidence is compounded by the complexity of the concept when its is located
within employer-employee relationships because: . . . obligations to refrain
from disclosing information flow from a variety of sources.24
Pinning the definition of protected information on forecasts that judges
hearing actions for breach of confidence would recognize a public interest
defence, is all well and good if there is one clear way into these determinations.
But there isnt. Judges have the options of formulating breach of confidence
actions within contract, property, tort or equity.25 So much for predicability!
In this regard legal advice to would-be whistleblowers contemplating the
dangerous option of disclosure, will do nothing more than vindicate chaos
theory.
Even if these criticisms of the third test of protected information are
unfounded there is still the issue of legal dependence. Would-be whistle-

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blowers will be required to seek legal advice as to whether their observations

of wrongdoing can advance to the next stage of being protected information.
Members of the legal profession are choreographed into the whistleblowers
world as indispensable sources of advice, in a country where legal advise
is expensive, legal aid in short supply, and disclosure law in a foetal stage
of development. Making would-be whistleblowers dependent on legal advice
within the context of the bill is just an extension of an unworthy tradition
of legal dependence. I know of no other whistleblower instrument that relies
so heavily on legal advice at this stage of disclosure. Given that the advice
must be predictive, in an area that as mentioned, is anything but predictable,
the soundness of legal opinion will become a real issue of concern. Solicitors
unsure of the law of confidence advising would-be whistleblowers contemplating the dangerous option of disclosure may be tempted to recommend
non-disclosure. The whistleblower-client unaware of the difficulties of giving
legal advise around the third test may become upset and sue or at least think
about suing for negligence.
There is no simple way of making the bill user-friendly at this point. Dispensing with the breach of confidence test and replacing it with another type
of test might be a good start. In a recent survey of whistleblower instruments
in Australia and New Zealand it was found that 8 out of the 14 legislative
schemes had good faith as a principal qualification for protection (along
with disclosure to appropriate authority).26 The question remains do we apply
the test to whistleblower motivation, veracity of disclosure, belief in the truth
fullness of the allegations, or all or a combination of these? An employee discloses to a nuclear regulatory authority the illegal sale of fissionable uranium
to a terrorist group because the principal wrongdoer ran off with his wife. On
what aspect of this case should the good faith test be administered?
motivation:
veracity:
belief:

whether the disclosure was primarily based on a concern for

the public interest;
whether the disclosure was objectively true;
whether the whistleblower genuinely believed the allegations to be true.

Replacing the breach of confidence test with a good faith test would not
be necessary if the bill defined public interest. That it doesnt put it in the
company of all other whistleblower instruments currently on statute books.
This widespread legislative shyness to define public interest is no doubt a
reflection of the conflictual nature of so called liberal-democratic societies.
As long as statutory definition of public interest remains in the too-hard basket, legislators will have to look around for other tests. Good faith is available

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but it does not enjoy consensus, as the discussion in the next section will
reveal.
Relevant disclosures
Clause 2 of the bill sets out two tests to determine if a relevant disclosure has
been made. The first test (in 3 parts) focuses on whistleblower motivation.
The whistleblower makes a disclosure relevant to the bill if it is made in
good faith, with a belief that the divulged information is accurate, and that
the information has not been disclosed for the primary purpose of monetary
gain. Writers such as Lewis and Goode have expressed concern about the
good faith test in the bill. Lewis has said:
Individuals must show [in clause 2] that they are not motivated by malice.
How relevant is malice of the information is true? If employees have a
contractional duty to report, for example, doctors or civil servants, can it
be assumed that they are not acting in bad faith.27
Goode makes a similar point about this part of the UK bill:
I do not see what difference it makes if the person is acting in bad faith
(whatever that means). Whistleblowers protection legislation must start
from the premise that if the disclosure is true, there is no need for any
further objective test. The objectivity lies in the truth of the disclosure. It
does not matter if the disclosure is made in bad faith or for all the wrong
reasons, because the public interest lies in disclosure of the truth of those
defined categories of information.28
Another point here is that the good faith test appears to be bedded in moral
absolutism. Unlike other members of the community, whistleblowers are
often expected (and expect themselves) to act with never a mind to their own
interests. Thankfully moral absolutism is beyond most of us. In the sort of
capitalist societies we have made for ourselves private interest is the manifest
state. Why should whistleblowers be expected to operate on a higher level of
morality in this context? It is vital that we do not airbrush private interest out
of whistleblower motivation. It is there to be acknowledged not denied.29
The second test goes to procedure. It has recently been described as a silly
rule . . . a substantial disincentive to genuine whistleblowers.30 It is here
we unearth, once again, the system-sympathetic values driving the drafting
process. The bill stipulates a pre-disclosure stage whereby the whistleblower is expected to make reasonable efforts to draw the alleged wrongdoing
to the attention of whoever he or she owes an obligation of informational
confidentiality (their boss in other words). Two escape clauses are built in.

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The person does not have to refer the alleged wrongdoing to a superior if
the whistleblower assesses that such action would be ineffective or that the
matter was so urgent as to justify immediate disclosure.
I suspect that whistleblowers are going to find these escape routes blocked
by hundreds of years of public service tradition. The concept of hierarchicalized authority is so etched into the ethos of public administration that one is
entitled to view sceptically any statutory attempt to qualify it. Public sector
authority is hierarchically arranged to ensure inter-alia higher level control
on low level functionaries. In the context that we find here this means control
over dissent and disclosure. This control is expressed forcibly in convention
and regulation that requires superior officers to not only be the first port of
call for the whistleblower, but in practice the only port of call.
Lewis cites paragraphs 11 and 12 of the Civil Service Management Code
to build this point:
[If a civil servant] considers that he or she is being asked to act in a manner
which appears to him or her to be improper, unethical or in breach of a
constitutional conventions, or to involve possible maladministration, or
to be otherwise inconsistent with the standards of conduct prescribed in
this memorandum and in the relevant Civil Service codes and guides . . .
the matter should be reported to a senior officer, and if appropriate, to the
Permanent Head of the Department.
Lewis goes on to state:
Clearly it is anticipated that if Permanent Heads are involved there will
be no justification for external disclosure.31 (emphasis added)
Another way of putting this is that the internal chain of command is usually
seen as the natural, legitimate, and only reference point for allegations of
wrongdoing. If the whistleblowers do not use it they must defend their sidestepping actions. They must defend themselves, in other words, against being
automatically regarded as organizational deviants. Whistleblowers have been
sacked or penalized in other ways for disrupting the chain of command, even
after making bona fide disclosures.32 Thus the recent case of Cornelius v. London Borough of Hackney involved the alleged unfair dismissal of Cornelius
who bypassed management and deposited his allegations of illegal activities
with his union. While the tribunal found that his dismissal was a retaliatory
discharge it assessed his contribution at 50% because Cornelius didnt try and
sort the matter out internally!33
The whistleblowing experience is usually a Damascene conversion whereby
old truths about the benevolent State and the integrity of the chain of command
painfully fall away. Deprived of whistleblower consciousness, the drafters

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hold to their quaint but dangerously wrong beliefs in bureaucratic probity

and worse, insist that British citizens contemplating disclosure hold to these
beliefs too.
If the drafters could see the world through whistleblower eyes they would
have given statutory protection to media disclosures in the public interest. The
bill steps back from acknowledging the media whistleblower. Once having
determined that disclosure to superiors would be ineffective, or unwarranted
due to the urgency of the situation, Clause 2 should of pushed on to specify a
media shelter. This is particularly important for two reasons. One, the media
is often the only outlet available to whistleblowers. Secondly, British courts
have a strong anti-media tradition and are likely to treat media disclosures as
breaches of confidentiality,34 unless a law states the contrary.
In failing to protect media whistleblowers the drafters of the UK bill are
in good company. Protection for whistleblowers who expose via the media
is the big no-go area for most whistleblower legislation. There are only
three states which protect media whistleblowers: New South Wales, Kentucky
and Utah.35 The reservation par excellence always trundled out to meet the
media whistleblower protection argument is the risk of damage to innocent
reputations by unsubstantiated media stories. While no doubt there is merit to
the charge, the really big problem for the government with media access for
disclosures is that the whistleblower is off the chain. Broken loose of the
tight, cautions, prolonged, and above all semi-secret agency procedures, an
exasperated but still-in-there whistleblower makes media contact, with stories
that are usually innately newsworthy, and in the public interest.
While at this point in the bill it must also be observed that investigative
outlets other than the media are also ignored. Trade unions and even authorities with a specific charter to handle the whistleblower disclosures are not
mentioned, let alone specified. This is a serious omission because there seems
to be a very strong tradition in public life in the UK that disputes should be
sorted out internally. This tradition is there to sort out the whistleblower
who for various legitimate reasons is deprived of such internal avenues.
Perhaps a less-lawyer approach can be found. For example Clause 10 of
the British Code of Professional Conduct for the Nurse, Midwife and Health
Visitor tells the nurse to make disclosures, . . . where you can justify disclosure
in the wider public interest. Thus what gives information its protected quality
is the fact that disclosure was in good faith, not that it would be likely to defeat
a breach of confidence action. This position aligns itself with S57(3) of the
Employment Protection (Consolidation) Act 1978 (UK) (henceforth EPCA)
whereby industrial tribunals must assess whether dismissals were fair or not.
As Vickers says, the tribunals cannot substitute their own point of view, they
can only assess the reasonableness of the employers action.36 Similarly the

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reasonableness of the disclosure, given all the facts should be the royal test
of entitlement to protection. I return to this point shortly.
Protections
Clause 3 purports to protect people having made or intending to make disclosures of protected information from reprisals, and offers statutory immunity
against what are vaguely referred to as offences under any enactment.
Reprisals should be spelled out more than they are. This list should include
punitive transfers and compulsory psychiatric referral. It should also make reference to unofficial reprisals such as workplace ostracism, increased scrutiny
of work, colleague abuse and bullying, denial of work necessary for promotion, physical isolation, duty downgrading and overwork. These illusive
vendetta patterns will continue to co-exist with the best whistleblower protection in the world. Illegalizing them has limited effect but in a well drafted
statute it could be part of their defeat.
It remains to be seen whether the bill on assent will be able to shield
whistleblowers from the recently moderated but still exceptionally strong
Official Secrets Act 1989, recently referred to as the best known obstacle
to whistleblowing.37 Im sceptical about that, particularly in view of the
fact that once harm has been proved under the Official Secrets Act, no
amount of public interest can be taken into account as mitigating the severe
disclosure penalties.38 Do the drafters of this bill really think it can immunize
whistleblowers from collateral challenge from long standing UK statutes that
deny freedom of speech?
Allied with my concern here is the increasing tendency to accentuate and
justify the implied duty of confidence owed to employers by writing contracts
in which this duty is an express term.39 Lewis observes that contracts with
gagging clauses are becoming more and more popular in the United Kingdom.
He also notes that codes of conduct (which encourage good faith disclosures)
are also becoming popular:
A potential difficulty here is that while the duty not to disclose is enshired
in the contract of employment, the requirement to report wrongdoing is
usually contained in a voluntary code . . . Thus it seems likely that where
a recommendation in the code conflicts with an express term forbidding
disclosure, the latter will be treated by management as taking priority.40
So I not only doubt the bills capacity to provide whistleblowers with a shelter
from secrecy enactments such as the Official Secrets Act, I also doubt it will
be able to transcend the new crop of silencing provisions being written in as
express terms to job contracts.

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Right to bring action

Clause 4 theoretically opens the door for court action for victimized whistleblowers. The Clause allows courts to respond with three remedies; compensation, injunctive relief, and declarations. Paragraph 3 of Clause 4 requires
the court determining a compensation claim from a whistleblower, to have
regard to:
the injury, loss or damage suffered by the whistleblower;
distress and reputational damage to the whistleblower and family;
the conduct of the whistleblower and respondent employer/respondent.
Recognizing that whistleblowers families get caught in the cross-fire of
allegation and vilification, makes this clause extremely pertinent.
It is a mystery why the drafters made whistleblowers and defendants conduct a criteria of assessment with respect to the award of compensation.
One must ask what possible (mis)conduct by the whistleblower would lead
to a reduction in compensation? Are we talking about court-room conduct,
disclosure conduct, or both?

Unfair dismissal, etc.

Clause 5 is off to a very responsible start when it re-affirms a whistleblowers
right not to be unfairly dismissed or made redundant.
5(1) An employee who has been dismissed from employment or selected
for redundancy as a result (or in part as a result) of having made a
disclosure of protected information in accordance with the provision of
this Act:
a) Shall have been dismissed unfairly and for an inadmissible reason for
the purposes of the Employment Protection (Consolidation) Act 1978;
b) . . .
What seems to have alluded the drafters is that there is a world of difference
between proscribing an act (in this case sacking or declaring whistleblowers
redundant) and enforcing the proscription.
One can almost feel the papier mache quality of this proscription; a paper
dam between whistleblower and management. It is not good enough to say,
as it is said in the bill, that the disputed connection between disclosure and
reprisal is an evidentiary matter for the courts to decide. The cumulative
whistleblower experience continually speaks of a vindictive, wily and wellresourced employer who will go to extraordinary lengths to mystify the causal
link between disclosure and retaliatory discharge.

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That being the case whistleblowers need all the help they can get when their
disclosures precipitate attacks on their occupational status and security (not
to mention attacks on their motives which is a slightly different issue). Unfortunately help is not forthcoming in the bill. To the drafters, whistleblowers
are just another group of litigants. As such the law does not have to change
to accommodate them. The bill opens the tribunal and court door to this new
litigant group as if the real solution to their problem is improved access.
Lacking any depth of whistleblower wisdom, the bill incorrectly assumes that
judicial culture and legal practice will not hinder this new litigant group.
Some more enlightened jurisdictions have acknowledged that courts can
deprive whistleblowers of justice and have taken steps to respond accordingly.
For example on the issue of proving causation between disclosure and reprisal.
South Carolina and Texas have created in their whistleblowing laws rebuttable
presumptions. By that it is meant that the courts will automatically assume
that employees who have experienced an adverse employment action within
1 year (South Carolina) or 90 days (Texas) of blowing the whistle have been
retaliated against. It is up to the employer to defeat this presumption.41
Another whistleblower-friendly reform concerning corroboration has been
instituted in Queensland recently. As Lord Morris said in DPP v. Hester: The
essence of corroborative evidence is that one creditworthy witness confirms
what another creditworthy witness has said.42 The problem for the whistleblower (after establishing her or his own credibility) is not so much finding
creditworthy witnesses, but getting them to come forward to embrace the risky
support role for the whistleblower. There is also the reality that a good deal of
wrongdoing and consequential harassment of the disclosure is witness-less.
In the face of pressure from womens groups, the Queensland Government
has decided to amend the corroboration laws relating to rape and other sexual
offences.43 Under the previous law judges had to warn juries of the dangers of
convicting on uncorroborated evidence. Under a revision to the code judges
will no longer issue this warning, except in special circumstances. Workplace
violence against whistleblowers merges conceptually with sexual violence.
The relaxation of the corroboration rule for whistleblowers would increase
disclosure-success and investigative effectiveness.
Finally mention must be made about reverse-onus. This is indeed a useful strategy to assist whistleblowers defend themselves against employment
reprisals. It happens to be on offer in the bill because of the interface with
EPCA.44 While reverse onus is important, the fairness of the dismissal is
based on reasonableness not injustice.45 Tribunals are required to reach just
and equitable decisions in the light of good industrial practice.46 They are
not required to focus only on the injustice to a whistleblower if there are more
transcendent issues at stake. In the words of Denning in Alidair Ltd v. Taylor:

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The tribunal have to consider the employers reason and the employers
state of mind.47 (emphasis added)
Denning spoke of the employer . . . honestly believ[ing] on reasonable
grounds . . . and that this was . . . a good and sufficient reason [to dismiss the employee]. This leaves the way open for a tribunal to decide that a
whistleblower was sacked (or otherwise treated) because of a prior disclosure,
yet the dismissal was fair because it was reasonable in the circumstances. The
circumstances could be the continued disruptive presence of the whistleblower. A non-whistleblower case is offered to illustrate this possible danger for
employees of conscience. In Wilson v. Underhill House School Ltd. the applicant was a school teacher who alone amongst his colleagues refused to take
less salary in order to help the school which was in dire financial straights. Her
dismissal was held to be fair.48 While this decision was based on commercial
reasons it is easy to choreograph into this issue the ostracized whistleblower
fairly dismissed because the disclosure activity has led to deteriorated work
relationships.49
So far it has been argued that the bills superficial response to whistleblowing is exemplified in its emphasis on access rather than law reform. The bills
dependence on EPCA raises other concerns. Rather than design a comprehensive adverse action section for the bill, particularized to the special socio-legal
needs of whistleblowers, the drafters have chosen to exploit the protections
offered in EPCA, which were drafted long before whistleblowing became an
issue. The risk here of course is that if the protections in EPCA are weak, or
more to the point misguided with respect to whistleblower cases, then the bill
(and whistleblowers) suffers these flaws vicariously.
Clause 5(3) allows the whistleblower who had suffered a penalty other
than dismissal or redundancy access to an industrial tribunal. No explanation
has been offered in the notes to the bill as to why dismissed and redundantdeclared whistleblowers cannot access an industrial tribunal also. It seems
these whistleblowers can (only) take court action (clause 4). The only thing
specified here is that industrial tribunals can determine unlimited compensation for such whistleblowers [clause 5 (1) (b)]. Without further information it
is impossible to know whether this is messy drafting or a deliberate strategy.
There are other concerns generated as a result of the drafters attempt to
interface the bill with EPCA.
Clause 5(4), which is also poorly written, opens up the provision and
remedies of SS22B and 22C of EPCA, to whistleblowers who have suffered
action short of dismissal. The clause reads like the conferral of a general
entitlement. However S22A (which controls SS22B and C) only pertains,
on its present construction, to employees who suffer detriment in health and
safety cases. If my analysis is correct than whistleblowers outside the health

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153

and safety area cannot lodge a complaints with an industrial tribunal until
S22B(1) is amended. If whistleblowers suffer detriments to workplace health
and safety (e.g. disclosing fraud) they are not protected. Clause 5(a) of the
24 Whistleblower Protection Bill contemplates an amendment to S22B(1) of
EPCA which would clarify the protection to health and safety whistleblowers,
but it does not extend the protection.
Rose has recently said in regards S22A:
. . . the protection provided by SS22A . . . of the Employment Protection
(Consolidation) Act 1978 is extremely limited. For example they would not
protect an employee who was dismissed for making a public disclosure of
his or her employers generally poor health and safety record.50 (emphasis
added)
The right to bring action for unfair dismissal is further qualified by a number
of exclusions. Employees who normally work outside the UK cannot sue
for unlawful dismissal. Nor can employees who are over the retirement age
on or before the effective date of termination.51 Nor can employees under
fixed term contracts of one year or more who have formally renounced their
unfair dismissal rights. Nor can police or people dismissed for the purposes
of safeguarding national security.52
Additionally the bill, in emphasizing protection against dismissal and
redundancy selection, has nothing to say about protecting the contract worker. Take the example of the driller employed on a two week contract in the
offshore oil industry who discloses a serious safety breach. He has probably
killed off any chances of re-employment. It has been suggested that the bill
cannot help him as the failure to re-contact his labour is technically not a
dismissal.53 However because of the way the Whistleblower Protection Bill
cross-references to the EPCA, protection may be available under S55(2) of
the latter statute:
S55(2) . . . an employee shall be treated as dismissed . . . if:
(a) the contract under which he is employed by the employer is terminated
by the employer . . . or;
(b) where under that contract her is employed for a fixed term, that term
expires without being renewed under the same contract . . .
SS22B and C only pertains, on its present construction, to employees who
suffer detriment in health and safety cases. If my analysis is correct than
whistleblowers outside the health and safety area cannot lodge a complaint
with an industrial tribunal until S22B(1) is amended. If whistleblowers suffer
detriments unrelated to workplace health and safety (e.g. disclosing fraud)
they are not protected. Clause 5(a) of the Whistleblower Protection Bill con-

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WILLIAM DE MARIA

templates an amendment to S22B(1) of the EPCA which would clarify the

protection to health and safety whistleblowers, but it does not extend the
protection. The bill has thus produced two classes of whistleblowers.
The bill does not come to grips with the special time-limit needs of whistleblowers, otherwise it would have provided for a softening of S22B(3) of the
EPCA which says:
S22B(3) An industrial tribunal shall not consider a complaint under this
section unless it is presented: (a) before the end of the period of three
months (from the start of the adverse employment action.
Whistleblowers may need all that time and more to pursue justice through
internal channels. Deliberate delaying tactics by the managers of internal
reviews could put the whistleblower out of time with a tribunal that has been
judicially told in the past to be fairly strict in enforcing time limits.54
There is also the very real problem that the whistleblower does not comprehend he or she has suffered an adverse employment action until they are
out of time. Management could have kept important facts from them which
if known would have led the whistleblower to see the crucial link between
these disclosures and the reprisals they suffered.
This leads to another problem. Under S53 of EPCA only employees with
2 years qualifying service are entitled to written reasons for dismissal if they
are summarily terminated, or there is no contract renewal. The whistleblower
without this service cannot even expect a dismissal statement. This denies
justice to whistleblowers new to the company. Often these are the people able
to see wrongdoing clearly.
Insurance
Clause 6 invalidates any term or condition of a contract of insurance as it
purports to provide insurance against any claim under Clause 4 or 5 of this
Bill.
Protection of sources
One must gasp at the grandiosity of the bills last substantive clause, which
guarantees, notwithstanding any statutory provision or rule of law to the
contrary, the protection of those receiving whistleblower information from
any pressure to reveal sources. This is either a foolishly drafted clause or it
indicates the pluckiness of the drafters to confront despotic emblems such as
the Official Secrets Act and the Civil Service Pay and Conditions of Service
Code.55 If it is a legal impossibility for the enacted bill to protect sources then
it is mischievous to add it to a list of false hopes.

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155

The bill: new deal

[The UK Bill] focuses on the negative reaction to whistleblowers and
does nothing to educate people about the positive benefits to be derived
from whistleblowing. The Bill does not ensure that genuine faults are
investigated or remedied by the organization involved. Arent people more
likely to report wrongdoing if they believe the information they provide
will be acted upon. It seems unduly optimistic to think that, as a result
of this bill being enacted, employers responses to reports of wrongdoing
will become so much more positive that this will reduce the need for
whistleblowing in the long run.
With these words David Lewis, Reader in Employment Law at Middlesex
University, finishes his review of the bill.56
When one considers the recent plight of British Whistleblowers,57 one is
drawn to contemplate a wide range of needed reforms, not the least of which
is an effective statute. This paper has no brief to consider anything other than
the current bill. Suffice to say legal solutions are only a small part of a reform
package.
Be that as it may, if this bill in re-draft is going to respond effectively to
public interest dissent it should provide for:
Independent agency
Sector penalties
Media protection
Corrupt political disclosures
Absolute privilege in defamation
Counselling
Whistleblower feedback
In the last section reference is made to Australian and New Zealand provisions
for matters missing from the UK Bill. It should be noted that Australia has four
whistleblowing acts in operation (Queensland, New South Wales, Australia
Capital Territory and South Australia); New Zealand has a single act covering
the whole country.
Independent agency
Independent agencies in the whistleblower area are not popular with legislators, who prefer to absorb whistleblower type investigations into existing
investigative agency structures.58 The New Zealand bill is the only Australasian instrument that makes provision for such an independent whistleblower authority.59 To be effective the agency must be administratively, fis-

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WILLIAM DE MARIA

cally and ideologically independent. A tall order, but anything short of this
will not respond effectively.60
Sector penalties
Only one Australia scheme gets close to the enlightened vicarious liability
provisions in some of the whistleblowing legislation in America. Section 36
of the Public Interest Disclosure Act 1994 (ACT) provides for convictions for
body corporates under this Act and fines of up to five times that allowed to
be imposed on individuals. The UK bill should have the power to hurt large
corporations whose management were indifferent to whistleblower suffering
within their employees ranks, or who clandestinely involved themselves in
the suffering.
Media protection
Protection for whistleblowers who expose via the media is the big no-no area
for the drafters of whistleblower legislation in Australia and New Zealand too.
Only one statute (NSW) offers protection for media whistleblowers, and that
protection is so highly conditional that it remains to be seen whether it will
work or not. Theoretically however it is a major step in the right direction.
Corrupt political disclosure
Shortening the striking power of whistleblower schemes by making them hard
or impossible to reach corrupt politicians, serves no other purpose than the
protection of political wrongdoing and the over-focussing on the misdeeds
of non-elected public officials, The South Australia Act technically protects
these into disclose wrong doing by politicians.
Absolute privilege in defamation
The UK bill offers the vague and hollow direction that no whistleblowers will be guilty of an offence under any enactment [Clause 3(1)(b)].
Absolute protection in defamation should be offered and spelled out as it is
in three Australian Acts.61 There are some important decisions coming out
of British Courts that deter public bodies from using the defamation writ to
stifle dissent.62 It would be appropriate to see these changes written into the
whistleblower bill.
Counselling
With the exception of the abandoned Commonwealth a Tasmanian bills, no
counselling is built into any of the Australian and New Zealand schemes. The

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157

UK bill remains indifferent to this vital issue too. What is euphemistically

called counselling in some of the schemes [e.g. Whistleblower Protection
Bills 1991, 1992 (Qld)] is nothing more than procedural advice and minor
support services. Yet counselling programs are sorely needed for the whistleblower and her or his family. The Queensland Whistleblower Study found
that 79% of the sample reporter deterioration in their emotional well-being.
Not only that, but the profile of psychic pain suffered by the majority was
indicative of a severe stress syndrome which has tentatively been called the
Whistleblower Stress Syndrome.
Whistleblower feedback
A few of the Australian and New Zealand instruments have grappled with the
issue of feedback to whistleblowers. The Public Interest Disclosure Act 1994
(ACT) is probably the best in this regard. Sections 22 (1) (2) read:
Progress report
22. (1) A person who makes a public interest disclosure, or a proper authority
which refers a disclosure to another proper authority, may request
the proper authority to which the disclosure was made or referred to
provide a progress report.
(2) Where a request is made under subsection (1), the proper authority
to which it is made shall provide a progress report to the person or
authority who requested it
(a) as soon as practicable after receipt of the request; and
(b) if the proper authority takes further action with respect to the
disclosure after providing a progress report under paragraph (a)
(i) while the authority is taking action at least once in every 90
day period commencing on the date of provision of the report
under paragraph (a); and
(ii) on completion of the action.
Under s23 of this Act the whistleblower is entitled to the following information: reason why authority declines to act; name of authority disclosure transferred to; current status of investigation; findings, action taken or proposed.
Similar but watered-down reporting requirements appear in the Queensland,
New South Wales and South Australian statutes.
The UK bill effectively denies the whistleblower any co-involvement in the
investigative and corrective processes that, on rare occasions, follow disclosures. The inference is that state structures should take over the investigation
of the disclosed wrongdoing, including the complaint of victimization. The
whistleblower is denied the opportunity to input into the investigation other
than through the giving of testimony. Like the rape victim whom the state

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WILLIAM DE MARIA

pushes from being central in a traumatic experience to being peripheral in a

court proceeding, the whistleblower is similarly marginalized.
It is not possible, even highly probable, that whistleblowers have something
to contribute to the form and content of the investigative process, and even
more importantly, some real expertise in structuring systemic solutions to
correct the wrongdoing and alleviate the possibility of its occurring again?
Governments want the whistleblower only to say what they saw. They have
big control problems with whistleblowers who maintain interest in the form
and content of the investigation of wrongdoing.
Resourcing the whistleblower
The bill does not acknowledge the enormous resource problems associated
with whistleblowing. In the absence of collective dissent and whistleblower
class action, the employee of conscience faces the fully resourced might of
the organization alone. Administrative strategies within the bill, could allow
for the following services, all designed to correct the individual-organization
power imbalance;
a) Defence fund allowance to provide for bona fide whistleblowers a sum
of money for costs of administering their disclosure and protecting themselves. Photocopying, telephone calls, witness expenses, transport costs,
typing, are the sort of services envisaged payable under an administrative
compensation scheme.
b) Special leave to compensate whistleblowers who must take leave to
administer their disclosures and protect their careers, good names, and
families.
c) Professional costs to reimburse whistleblowers for legal, medical, and
counselling services when such are not provided, or not fully provided
by legal aid and health insurance.
d) Stress leave the ever-tightening compensation laws with respect to
access to stress leave make it important that a special provision exists for
people suffering from the whistleblower stress syndrome.

Conclusion
The Whistleblowers Protection Bill 1995 (UK) introduced into the House
of Commons in June 1995 lets the British public down at a time when
official corruption is daily news63 and community concern about the dropped
standards of public conduct a daily anxiety. Public conduct scandals such as
the Poulson affair, the mis-conviction of the Birmingham Six, the resignation
of Neil Hamilton, the Corporate Affairs Minister, for an alleged involvement

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159

in the cash for questions scandal, and the 30 million homes for votes
scandal at the Westminister Council have produced various inquiries such
as the Salmon Commission (1976); the Runcimian Royal Commission on
Criminal Justice (1991); and the Nolan Committee on standards in public
life, announced by the Prime Minister John Major on 25 October 1994.64
The concerned observer of these scandal-inquiry packages has every right
to be sceptical about the historical monotony of it all. It is as if these scandalinquiry packages run to a set choreography: wrongdoing-disclosure-inquiryamnesia-wrongdoing, etc. The linchpin stage is when the disclosures are
made. If this stage is handled correctly, i.e. good quality, hard to rebut information by a well supported and well intentioned whistleblower, there is every
chance that the set choreography of inaction can be refocussed so that correction follows disclosure as night follows day. This linchpin stage depends
inter-alia on effective whistleblower protection statutes. The current bill is a
far cry from what is needed.

References
1.

It is known that there are over 250 UK statutes which prohibit the disclosure of information, including information about safety risks. See notes on The Whistleblower Protection
Bill prepared by the Campaign for Freedom of Information, 26 June 1995, p. 3.
2. For comment on the draconian Official Secrets Act, see N. Rose, Whistleblowing
Time for a Change?, NLJ Practitioner, Vol. 145, No. 6680, 27 January 1995, 113.
3. K. Kyle, Suez (1991), 95. Quoted in J. Griffith, Judicial Politics Since 1920 (1993), 67.
4. J. Griffith, ibid., p. 69.
5. A recent research paper produced by the Israeli Armys Military History Division details
how Israeli paratroopers killed 273 Egyptian and Sudanese prisoners of war in this period.
Australian, 17 August 1995.
6. J. Griffith, op. cit., 69.
7. I am relying on Griffiths account. See J. Griffith, ibid., 162164.
8. Ibid., 164.
9. Ibid.
10. Independent, 28 June 1995, 11.
11. The following matters are listed in the schedule to the Whistleblower Protection Bill
1995 (UK).
(i) an offence or a breach of any statutory requirement or legal obligation;
(ii) improper or unauthorized use of public or other funds;
(iii) abuse of authority;
(iv) miscarriage of justice;
(v) maladministration;
(vi) danger to the health or safety of any individual or to the environment;
(vii) other misconduct or malpractice.
12. The Senate Select Committee on Public Interest Whistleblowing endorsed the authors
definition:
The whistleblower is a concerned citizen, totally, or predominantly motivated by
notions of public interest, who initiates of her or his own free will, an open disclosure
about significant wrongdoing directly perceived in a particular occupational role, to a

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WILLIAM DE MARIA

person or agency capable of investigating the complaint and facilitating the correction
of wrongdoing.

13.

14.

See In the Public Interest (1994). 78.

In the United States federal protection for private sector whistleblowers exists through 3
statutes: Energy Reorganization Act; Mine Safety & Health Act; Occupational Safety &
Health Act. In addition there are 11 state statutes which extend their provision to the private sector. See W. De Maria, Whistleblowing and the Law: An International Sourcebook,
Queensland Whistleblower Study, Result Release Three. Department of Social Work and
Social Policy, The University of Queensland, Ch. 2. In Australia the only statute that
extends to the private sector is the Whistleblower Protection Act 1993 (SA). The Whistleblower Protection Act 1994 (Qld) provides for highly conditional protection to those who
report wrongdoing towards the disabled, the environment and whistleblowers (reprisals).
A New Zealand bill, the Whistleblower Protection Bill 1994 (NZ) provides for private
sector whistleblowing. See W. De Maria, Public Interest Disclosure Laws in Australia
and New Zealand: Who Are They Really Protecting? Alternative Law Journal, December
1995.
A similar reservation about this part of the bill has been expressed by Mathew Goode,
Adjunct Associate Professor of Law, University of Adelaide:
There is a mass of uncertain law on what [public interest defence to breach of
confidence] might mean, and it varies in context. Why . . . pick up this series of
judicial decisions, the meaning of which is in dispute, which date from the last
century . . . It is certainly a very conservative test.

15.
16.
17.
18.
19.

20.
21.
22.

23.
24.

See M. Goode, Notes on the UK Draft Whistleblowers Bill, 9 September 1995, 1.

Mathew Goode was the principal architect of Australias first Whistleblower Statute,
the Whistleblower Protection Act 1993 (SA). Lewis also comes down strongly on the
bills logic here: It is notoriously difficult to predict when a [UK] court will hold that a
breach of confidence was in the public interest. See D. Lewis, Some Comments on the
Whistleblower Protection Bill 1995, 1.
I. Smith, J. Wood and G. Thomas, Industrial Law (1993), 5th ed., 299.
Public Concern at Work, The Whistleblower Protection Bill: An Introductory Note on
Public Interest Disclosure, 28 June 1995, 1.
D v. National Society for the Prevention of Cruelty to Children [1976], All ER, 9931010.
Ibid., 999.
Ibid., 1008. In fact judicial uncertainty about public interest immunity to breach of
confidence actions is well displayed in the appeal history of D v. NSPCC. NSPCC first
took out a summons for a no-discovery order. This was dismissed. An appeal from the
dismissal decision, allowed by Croom-Johnson JD then went to the Court of Appeal
which found in her favour by majority. Finally the House of Lords reversed this decision,
re-instating the original appeal decision of Croom-Johnson.
N. Rose, op. cit., 114.
Public Concern at Work, The Whistleblower Protection Bill, op. cit., 1.
Cripps says the first case in which a public interest defence to an action for breach of
confidence was clearly defined was Gartwise v. Outram (1856) 26 LJ, Ch. 113. See
Y. Cripps, The Legal Implications of Disclosure in the Public Interest: An Analysis of
Prohibitions and Protections with Particular Reference to Employers and Employees
(1994), 2nd Ed., 25.
Cripps lists a number of cases in which she says the conceptual basis of breach of
confidence was not easy to identify. See Y. Cripps, ibid., 17.
Ibid., 18. One of those sources appears to be the administrative position of the whistleblower. In Faccenda Chicken Ltd. v. Fowler, Neil L.J., who delivered the judgement of
the court, indicated that in deciding breach of confidence cases where information was

THE BRITISH WHISTLEBLOWER PROTECTION BILL

25.
26.
27.
28.
29.
30.
31.
32.

33.
34.
35.
36.
37.
38.
39.
40.
41.
42.
43.
44.

161

divulged post-employment, regard should be had inter alia for whether the ex-employee
habitually handled confidential information. If that is the case a higher duty of confidentiality may exist. There is an obvious and dangerous sense of arbitrariness in this
logic. The ex-tea lady who releases a document to the media could fare much better in
a breach of confidence action then her boss, who on retirement wrote a biography using
confidential material picked up on the job. When the notion of publication in the public
interest in considered, the ex-tea lady, somewhat immune from the wrath of the law,
released a document, confidential though it might of been, that was fit for no other outlet
than a sleazy tabloid. While the ex-boss, releases material about corruption which we
should know about, but in so doing becomes more exposed to an action for breach of
confidence. It doesnt make sense. The inequity here is obvious. This case is cited in Y.
Cripps, ibid., 9.
Ibid., 29.
W. De Maria, Public Interest Disclosure Laws in Australia and New Zealand, op. cit., 3.
It should be noted that not all these instruments passed into law.
D. Lewis, Employment Protection for Whistleblowers What Can We Learn from the
UK Bill?Address to Whistleblowers Australia Meeting, 3 September 1995, 2.
M. Goode, op. cit., 1.
This issue is further explored in the W. De Maria, The Welfare Whistleblower: In Praise
of Troublesome People, Department of Social Work & Social Policy, The University of
Queensland, unpub. ms., 1995.
M. Goode, op. cit., 2.
David Lewis makes this point. See Whistleblowing and Job Security (1995), Modern
Law Review, 211.
In Mudd v. Hoffman Homes for Youth Inc. [374 Pa. Super. 522, 543 A 2d 1992 (1988)],
the plaintiff was a social worker who claimed that two of her colleagues were committing
drug and child abuse, and furthermore were dealing drugs to children at the child welfare
home where she was employed. After an unsatisfactory response from her executive
office, Mudd made her allegations known to the Board of Directors. Even though Mudd
was required by State law to report suspected abuse to her immediate supervisor, and even
though the court acknowledged that a public policy exists prohibiting activities involving
illegal drugs, the Court concluded that she was dismissed for disrupting the chain of
command rather than in retaliation for her whistleblowing. For further commentary see
T. Dworkin and E. Callahan, International Whistleblowing: Protecting the Interests of
the Employee, The Organization and Society (1991), American Business Law Journal,
29, 290.
Cornelius v. London Borough of Hackney, COIT 4376/92/LS/A. I am grateful to Rose
for this case. See N. Rose, op. cit., 114.
N. Rose, op. cit., 114.
See Protected Disclosures Act 1994 (NSW); Kentucky Rev. Stat 61.101; Utah Code
67-21-1.
L. Vickers, Protecting Whistleblowing at Work (1995) Institute of Employment Rights,
18.
D. Lewis, Whistleblowing and Job Security, op. cit., 214.
Ibid. Lewis observes, . . . if disclosure was likely to jeopardise United Kingdom interests
abroad, it could not be argued that it was nevertheless justified because it prevented loss
of life at home (214).
Ibid., 210. See also L. Vickers, op. cit., 4.
Ibid., 210211.
See Texas Rev. Civ. Stat Ann. art. 6252-16a; South Carolina Code Arn 8-27-10.
DPP v. Hester (1972) AC, 296.
Courier Mail, 27 March 1995, 3.
Under the Act, the burden of proof shifts to an employer who has sacked a whistleblower.
Under S.57 the employer has to show two things;

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WILLIAM DE MARIA

a) Reason for dismissal

b) That this reason was legal, i.e. it:
related to competence
related to conduct
was based on redundancy of the worker
would be illegal to continue to employ the worker
was based on some other substantial reason.
It is this for the industrial tribunal to decide whether the employer acted reasonably. If
the employer fails to satisfy the tribunal then the dismissal is held to be unfair under the
Act.
45. Recently reaffirmed by the House of Lords in Polkey v AE Dayton Services Ltd., [1988]
ICR 142.
46. I.T. Smith and J.C. Wood, op. cit., 356.
47. Alidair Ltd. v. Taylor [1978], ICR 445. Quoted in I.T. Smith and J.C. Wood, op. cit., 357.
48. Wilson v. Underhill House School Ltd. [1977] IRLR 475. Quoted in N. Selwyn, Law of
Employment (Butterworth, London, 1991), 7th Ed., 314.
49. Gorfin v. Distressed Gentle Folks Aid Association [1973], IRLR 290. Quoted in N.
Selwyn, ibid., 316. Note Gorfin was not a whistleblower.
50. N. Rose, op. cit., 114.
51. In the notes on the bill prepared by the Campaign for Freedom of Information mention
is made of including retired employees. However there appears to be no provision made
in the bill for this.
52. I.T. Smith and J.D. Wood, op. cit., 344350.
53. David Lewis uses this example and makes this point in Whistleblowing and Job Security, op. cit., 210.
54. See Dennings comments in Norgett v. Luton Industrial Co-operative Society Ltd. [1976]
ICR 442.
55. Both the Act and the code make no provision for public interest exceptions to the doctrine
of confidentiality.
56. D. Lewis, Employment Protection for Whistleblowers, op. cit. 7.
57. Freedom to Care regularly profile stories of whistleblower victimization in their journal
The Whistle.
58. See W. De Maria, Public Interest Laws in Australia and New Zealand: Who Are They
Really Protecting?, op. cit., 56.
59. Mention should be made of an important recommendation made by the Australian Senate
Select Committee on Public Interest Whistleblowing, that any proposed Commonwealth
legislation should have as its centrepiece an independent authority. The Senate Committee
has called this the Public Interest Disclosure Agency. See In the Public Interest, op. cit.,
107110. Mention should also be made of statements made by Public Concern at Work.
In its first annual Report it says that the Senate Select Committee . . . called for a body
to be modelled on Public Concern at Work [Annual Report (1994)], 17. I hardly think
the Senate had a one year old British charity in mind when it wrestled with the complex
issue of whistleblower administrative structure.
60. See W. De Maria and C. Jan, Behold the Shut-Eyed Sentry: Whistleblower Perspectives on Government Failure to Correct Wrongdoing, Crime, Law and Social Change,
(forthcoming).
61. Absolute privilege in defamation is offered in the Public Interest Disclosure Act 1994
(A.C.T.); Whistleblower Protection Act 1994 (Qld); and the Protected Disclosures Act
1994 (NSW).
62. See Derbyshire Council v. Times Newspaper Ltd. and Others [(1993) 2 WR 449].

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63.

163

Civil Servant Suspended in Bribes Inquiry, Sunday Times, 30 July 1995, p. 2; Who
Guards the Guardians?, The Times, 26 October 1994, 2; Sinking Flagship, New Statesman & Society, 8 September 1995, 1618.
64. R. Morgan, Law Lord Declares Preference for Hearings in Public, The Times, 26
October 1994, 2.