MPs begin to debate the government’s new Enterprise and Regulatory Reform bill today (monday). Buried in this legislation in Clause 14 is a plan to limit people with employment contract disputes using the whistleblowers law.
The reasoning behind it is explained in the latest House of Commons Library report on the bill. It says:
“In March 2012, the Department issued its annual employment law review which stated: It has come to light through case law that employees are able to blow the whistle about breaches to their own personal work contract, which is not what the legislation (Public Interest Disclosure Act (PIDA)) was designed for.
Clause 14 would ensure that only disclosures that are in the public interest would attract protection under the whistleblowing provisions of the Employment Rights Act,1996.”
Superficially this sounds quite reasonable. Whistleblowing legislation should not be used for personal contract disputes. But the way the government is going about this it could sound the death knell for potential whistleblowers just at a time when they are most needed.
Think for one second. A company gets a complaint from a whistleblower about a nefarious practice. What better way to frighten a whistleblower than by going to the courts claiming this is not in the public interest and demanding a hearing before a judge. The company can then rubbish the whistleblower using the absolute privilege afforded by court hearings for maximum publicity by claiming the complainer is a bad worker, in breach of contracts etc – damaging the whistleblower’s reputation.
There then follows a long dispute about what should be a public interest test – since this until now is only used in Freedom of Information Act disputes in tribunals – with different judges defining it in different ways. As Lord Touhig, a whistleblower champion said in a Lords debate: ” This would make a field day for lawyers.”
But there could be another agenda. The government’s fast track privatisation programme for public services has already led to whistleblowers revealing bad practice as shown in the recent private hearing of the House of Commons Public Accounts Committee. There I am told two Tory MPs put pressure on the committee not to hear in public whistleblowers’ allegations about bad practice in A4e, the private work provider, which has £200m of Department of Work and Pensions contracts.
The next day the Daily Telegraph leaked some of their evidence and Chris Grayling, the minister for work but one suspects sympathetic to A4e, used an appearance on BBC Newsnight to cast doubt on the motives of the whistle blowers. Has he got DWP files on them I wonder or did A4e brief his press office or special adviser?
Now the Guardian’s splendid Rajeev Syal is reporting that Osita Mba, who blew the whistle on former Revenue chief Dave Harnett’s secret tax deal for bankers Goldman Sachs, has found himself being investigated by the criminal investigations unit of Revenue and Customs. (see http://bit.ly/Mo5oXF )
It seems to me that people should back the campaign by Cathy James, chief executive at Public Concern at Work (http://www.pcaw.org.uk ) to stop this piecemeal change. At the very least the clause should be redrafted to define what should be excluded as a personal contract rather than submitting everything to a public interest test. Otherwise the public have every right to believe that the government has something very different in mind.