© PCaW

PCaW is an independent charity, founded in We provide: free confidential advice to people concerned about wrongdoing in the workplace who are unsure whether or how to raise their concern, train organisations on accountability, whistleblowing and risk management, campaign on public policy, and promote public interest whistleblowing laws. © PCaW

Genuine suspicion Substance to the concern Valid cause to go wider The actual disclosure is reasonable Internal disclosure Regulatory disclosure Public disclosure Lord Nolan praised PIDA for ‘so skilfully achieving the essential but delicate balance between the public interest and the interest of the employers’. © PCaW

ECHR – Article 10 “1. 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. This Article shall not prevent states from requiring the licensing of broadcasting, television or cinema enterprises. 2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.” © PCaW

Key case law for the presentation: Fressoz and Roire v France [2001] 31 EHRR 2 Grigoriades v Greece [1998] 4 BHRC 43 Tucht v FRG 9336/91 (unreported) Heinsich v Germany (Application no /08) Steel and Morris v United Kingdom (Application no /01) Vogt v Germany [1996] 21 EHRR 205 © PCaW

Whether the disclosed information is in the public interest Whether the employee had alternative channels for making the disclosure, i.e., he/she could or did seek an internal investigation of his/her allegations The reliability of the disclosed information (the person who discloses the information must be able to verify that it is accurate and reliable; allegations must be backed up with facts) Whether the employee acted in good faith (the allegations must not amount to a gratuitous attack on the employer) Detriment to the employer Severity of the sanction imposed on the employee Heinisch v Germany The ECHR considered the following criteria should be taken into account when balancing the employer’s interest to protect its reputation and the employee’s right to freedom of expression under Article 10: © PCaW

Duties and responsibilities Manner of expression Proportionate to the legitimate aim pursued? Application in UK Employment Tribunals – Bennett v Manchester Fire and Rescue Authority Comparison to the framework of the Public Interest Disclosure Act © PCaW

The Commission for Equality and Human Rights conducted and inquiry into the protection and promotion of human rights of older people in England who require or receive home-based care and support, they found: “legal safeguards provided by the Human Rights Act, which should be used to guarantee respect for the human rights of older people, including preventing inhuman or degrading treatment, are not as widely used as they should be. Bare compliance with the Act is not enough; public authorities also have ‘positive obligations’ to promote and protect human rights. There is also a significant legal loophole which means that the majority of older people who receive care at home – that is, if they pay for all or part of it themselves or if it is delivered by a private or voluntary sector organisation – are not protected by the Act.” © PCaW

PCaW research on whistleblowing concerns evidence for CEHR Speaking up for vulnerable adults: What the whistleblowers say Draw across to the NHS What can a rights based approach add? Empowering for workers if they have a sense the rights of those they care for? A string for your bow or a further complication? © PCaW

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