Last reviewed 24 September 2014
Since April 2012, Ofqual has received 73 complaints of whistleblowing relating to exam and coursework irregularities. Sarah Beeby of Dentons UKMEA LLP considers the law surrounding whistleblowing, and employers' duties to protect those who blow the whistle.
England's exam regulator has received scores of complaints from whistleblowers about alleged cheating in schools and colleges, and its attention has been further drawn to cases of misconduct within awarding bodies. This stark revelation is putting greater pressure on the teaching profession to blow the whistle on institutions using malpractice to maximise exam and coursework results.
With reputations among the teaching profession coming under greater scrutiny, and more being demanded by its students due to the steep rise in tuition fees, it is easy to understand why professionals would want to avoid drawing any further negative attention toward the education sector. The plain reality of the potential for workers to lose their jobs or ruin their reputations may explain why more workers do not speak up regarding instances of wrongdoing. However, with greater protection being offered to whistleblowers, it appears that this fear may begin to subside and instead allow for disclosure, which provides a better opportunity to regulate and, thereby, remedy instances of malpractice within the education sector.
Whistleblowing is an act of disclosure by a worker to an employer, or a third party, regarding misconduct that has occurred within his or her organisation. Subject to certain criteria, the employee will be protected from dismissal or resulting detrimental action as a result of his or her disclosure. A whistleblower will only qualify for protection if there is a qualifying disclosure or if the disclosure is protected.
For a disclosure to be qualifying, there must be a disclosure of new information to someone who may have previously been unaware of the facts conveyed to him or her. Simply threatening to make a disclosure or only gathering evidence will not satisfy this requirement as a mere communication or allegation. This requirement may be met by:
the cumulative effect of several disclosures
written and oral communications
any form of recorded information.
To be a qualifying disclosure, the subject matter must also relate to one of the six types of "relevant failure" and the employee must have a reasonable belief of the occurrence of this. Instances of relevant failures include:
breaches of legal obligations
miscarriages of justice
danger to an individual's health and safety
damage to the environment
deliberate concealment of any of the above.
If the disclosure was made after 25 June 2013, it will only be a qualifying disclosure if the employee reasonably believes that the disclosure is "in the public's best interest".
In terms of having a "reasonable belief", the employee is not required to prove that the facts of his or her disclosure are true. As long as the employee subjectively believes the malpractice has occurred or is likely to occur, and this belief is objectively reasonable according to an employment tribunal, then it is irrelevant if that belief subsequently turns out to be untrue or the information disclosed does not amount in law to a relevant failure. The case of Babula v Waltham Forest College  IRLR 346 (CA) overruled the employment appeal tribunal's earlier decision in Kraus v Penna  IRLR 260 and determined that there could be no qualifying disclosure unless there was a legal obligation capable of being breached.
For a disclosure to be protected, there must be a qualifying disclosure of information. The Employment Rights Act 1996 (ERA) s.43B(1) states that the employee must reasonably believe that the information he or she has uncovered tends to show that one of the relevant failures (set out earlier) has already occurred, is currently occurring, or is likely to occur.
Whether a disclosure is protected largely depends on a number of factors, the most prominent of which is to whom the disclosure is made. In most cases, protected disclosures are made to an employer, and whistleblowers are encouraged to address any genuine concerns at first instance internally with their employer. However, it may be more appropriate to make a qualifying disclosure to a responsible person. This will be a protected disclosure as long as the whistleblower reasonably believes the misconduct is the responsible person's legal responsibility to remedy, and not his or her employer's responsibility.
It is important to note that disclosures made widely to the media or police will struggle to come under the protection of the Public Interest Disclosure Act 1998 (PIDA), but a disclosure to a "prescribed person" is likely to gain protection relatively easily, and there is no requirement to have previously disclosed this information to the employer. The Public Interest Disclosure (Prescribed Persons) Order 1999 (SI 1999 No. 1549), as amended, sets out who comes under the term "prescribed persons" and the relevant matters to which they are connected. Examples include Ofcom, HMRC and Ofqual.
Employers' duties to protect whistleblowers
Confidentiality provisions are often found in an employee's contract of employment or even a settlement agreement. Even in the absence of such express provisions, a duty of confidentiality is implied into employees' contracts of employment as part of their duty of good faith. However, legislation renders such contractual terms void so far as they preclude an employee from making a protected disclosure. Therefore, employers are bound by law to waive any confidentiality provisions if imposing them would impede an employee from making a protected disclosure, and as a result an employer cannot bring a breach of contract action against an employee as a result.
Protection is given to whistleblowers on two levels by virtue of PIDA 1998, which amended ERA 1996.
ERA 1996 s.103A states that the dismissal of an employee will automatically be unfair if the sole or primary reason for this decision was that he or she made a protected disclosure. This also applies to employees who have been selected for redundancy principally or exclusively as a result of their whistleblowing (ERA 1996 s.105(6A)).
Whether the dismissal flows from the disclosure of information is a question of causation. It is for employees to prove that they have made a protected disclosure, that they have been dismissed, and that the link between these two factors gives them grounds to bring an automatically unfair dismissal claim.
In instances where unfair dismissal has resulted from a protected disclosure, there is no qualifying minimum period of service (ERA 1996 s.108(3)). This is a particular advantage to whistleblowers when compared to ordinary unfair dismissal cases. It may result in employees, who have not yet reached the two-year qualifying minimum period of service required for an ordinary unfair dismissal claim, claiming to be whistleblowing, as this would enable them to proceed with their unfair dismissal claim.
PIDA 1998 extends workers' protection by prohibiting workers from being exposed to unlawful detriment as a result of their whistleblowing. Under s.47B(1) ERA 1996, it is unlawful to act in a detrimental way toward a worker who has made a protected disclosure. In Shamoon v Chief Constable of the Royal Ulster Constabulary  IRLR 285, it was held that a worker suffers a detriment if a reasonable worker would, or might, take the view that he or she has been disadvantaged in the circumstances in which he or she has had to work. This unlawful behaviour includes:
bringing disciplinary action
loss of work
damaging career prospects.
Therefore, if whistleblowers are faced with the threat of losing their teaching position, or if their reputation across the education sector is damaged as a result of the protected disclosure, they may be able to bring a claim against their employer for unlawful behaviour.
The concept of vicarious liability was also introduced into the whistleblowing regulations on 25 June 2013. Therefore, any act by a worker that subjects another worker who has whistleblown to detriment will be treated as having been done so by the employer. The employer will, however, have a defence if it took all reasonable steps to prevent the detrimental behaviour. However, the implementation of vicarious liability does not exclude the personal liability of any worker who is treating another worker detrimentally. When claiming detriment, workers must prove that they have made a protected disclosure and that there has been detrimental treatment. The burden will then fall to the employer to provide the reason for the treatment. If the employer does not provide an admissible reason, the tribunal must conclude that it is because of the protected disclosure.
A further advantage granted to whistleblowers who are successful in an unfair dismissal or detriment claim is that there is no upper limit to the financial compensation they may receive. The basis of this calculation does, however, vary case by case and will consider factors such as future loss and injury to feelings due to the damage that may have been caused to their reputation. Although whistleblowers are afforded protection under PIDA 1998, it is crucial for them to stay within the law in order to benefit from this safeguard. For example, in Bolton School v Evans  EWCA (Civ) 1653, an employee hacked into the school's IT system merely to prove his concern that the system was not secure. This unauthorised action was deemed a separate act to the disclosure, which in turn meant it was not protected by the whistleblowing legislation. This decision is the authority for the proposition that there must be a link between the protected disclosure and the detriment in order for s.47B to apply.
Before PIDA 1998, legitimate whistleblowers were given very limited protection under ERA 1996 on the grounds of unfair dismissal and breach of confidentiality. However, its introduction has since led to many organisations implementing whistleblowing policies. These policies encourage internal disclosure and the resolution of malpractices by offering an avenue for workers to report concerns.
Whistleblowers have increased protection under the law and this should give confidence to the education sector when dealing with the growing trend of alleged skewed exam and coursework results. It will be harder for institutions to get away with maximising their results through misconduct, as employees feel safer bringing such cases to justice. Recent changes to the law on whistleblowing and the development of internal whistleblowing policies have resulted in greater clarification of the duties owed to whistleblowers as a result of PIDA 1998. Consequently, we are likely to face an even greater influx of whistleblowing cases concerning the education sector in the coming years.
As stated on the Ofqual website, "Workers who 'blow the whistle' on wrongdoing at work have a right not to be dismissed or suffer detriment at work". Therefore, if any member of the teaching profession believes that there is evidence of malpractice or wrongdoing within his or her organisation, Ofqual encourages workers to bring this to its attention or, alternatively, seek advice from the independent whistleblowing charity, Public Concern at Work.