“Good faith” - case law on PIDA
The Court of Appeal in Street v Derbyshire UWC held that an employee can fail the good faith test and lose PIDA protection where a tribunal finds that their dominant or predominant motive for making the disclosure was unrelated to the public interest objectives of the Act .
In Lucas v Chichester DHA the Employment Appeal Tribunal (EAT) gave guidance to tribunals on applying Street. It says it is for the employer to assert a lack of good faith and that any evidence it relies on should be set out in advance so the claimant can respond to it. Drawing, like the Court of Appeal, on the analogy of malice or bad faith in defamation, the EAT said tribunals should not lightly find that a disclosure was not made in good faith. As malice in a working relationship was both exceptional and a serious allegation, the employer should produce cogent evidence which the tribunal should then weigh with the other evidence in the case before deciding whether some dominant or predominant ulterior motive meant PIDA protection should be forfeited. This decision has been followed in Bachnak v Emerging Markets where the EAT held that it is for the employer to show that the disclosure had been made in bad faith.
Good faith - public policy, PIDA and PCaW
The decision in Street - which can be explained by the particular facts of the case and that the Court of Appeal was concerned with a public disclosure under section 43G(3) - caused concern that it would encourage motive to be made an issue in more PIDA cases. If so, it would deter workers from raising public concerns in the first place. For this reason, the Shipman Report has proposed that the good faith test be removed from PIDA. While the decision in Lucas helpfully guides tribunals to apply Street in a considered way, the Court of Appeal’s decision remains problematic.
Inevitably tribunals and courts want and need to police their jurisdictions to minimise the risk of abuse and, in the context of employment law, where there is no entry fee and where until recently there have been no real sanctions against abuse, the appellate courts will have seen many more cases of employees sailing close to, or over, the wind than of employers. Additionally as advocates often want to test the boundaries of a law, cases such as Street can be run as standing or falling on the good faith test (ignoring other provisions in PIDA or employment law that allow the tribunals to do justice), with the result that there can be pressure that the legislation is made to fit the case.
Whether or not this is what happened in Street, our concern with the decision is two-fold. First, the more loathed and loathsome an employer – e.g. Maxwell - the easier he will be able to discourage public interest whistleblowing and conceal his wrongdoing. Secondly, we are worried that some lawyers will be tempted to use the decision as a licence to argue over motives in every whistleblowing case.
For these reasons, we look forward to the response of Government and interested parties to the recommendation of the Shipman Report that the good faith test be dropped from PIDA. If the test is to remain, our view is that the written submission we sent the Court of Appeal on the meaning of good faith in PIDA is to be preferred and we regret there was not an opportunity for us to make oral submissions in support. Our view remains that good faith means the disclosure was made honestly and this is very similar to that of the Government which, when it responded to the Inquiry into the deaths of children at the Bristol Royal Infirmary, stated that ‘in good faith’ in PIDA is intended to mean ‘honestly and not maliciously’.
The Government confirmed to Parliament that it had intended the term ‘good faith’ to have the meaning advocated by Public Concern at Work during the debate on 17 January 2002 on the report into the child deaths at the Bristol Royal Infirmary. The issue was raised by Ross Cranston QC and his speech can be read here, while the Government’s reply can be read here.
Finally as to the role of PCaW in litigation, we intervened in the case of Street as this exceptionally raised a broad public policy point under PIDA and we did not appear in the Lucas case, but commented on the appellant’s submissions. PCaW does not represent parties but is willing to offer comment on points made on behalf of employers or employees on the general policy or the construction of PIDA.