Report No. 179
Judicial Protection to whistle Blowers In U.K, European Union and USA
Before the legislature intervened and brought in statutory protection to whistle blowers, Courts in various countries evolved several principles to protect victimization of whistle blowers. We shall refer to some of the judgments of the English Courts, the European Court and the US Courts.
English Courts have consistently laid down in the last more than One hundred and fifty years that there is an exception to the general principle of confidence which an employee has to maintain vis-à-vis his employer, and the exception is that where he comes to know that certain actions of his employer are detrimental to public interest, he has a duty to disclose to the public and such disclosure can neither be prevented by his employer nor is it actionable.
Abundant case law was developed in UK long before Parliament stepped in and enacted the Public Interest Disclosure Protection Act, 1998 (For necessary case law, see "Whistle Blowers and Job Security" by David Lewis in 1995 Modern Law Review, pp. 208-221). We shall refer to the principles laid down by the English courts in leading cases.
In Gartside v. Outram (1857) 26. L.J.Ch. (N.S) 113, a former employee informed the victims of a fraud giving details of the fraud carried out by his employer. The employer's application for an injunction to prevent further disclosures was refused. Wood VC observed as follows:
"The true doctrine is, that there is no confidence as to the disclosure of inequity. You cannot make me the confidant of a crime or a fraud, and be entitled to close up my lips upon any secret which you have the audacity to disclose to me relating to any fraudulent intention on your part".
Explaining the above judgment, Lord Denning stated in Fraser v. Evans 1969 (1) QB 349 that the word "iniquity" here means "just cause or excuse for breaking the confidence".
The public importance of uninhibited criticism of Government or public servants was recognized in England, as already stated, in Derbyshire v. Times News Paper Ltd. 1993(2) WLR 449 as an important part of the democratic process. Similar principles were laid in Hector v. A.G. of Antigua and Bermuda 1990(2) AC 312. The English Courts substantially applied the principles laid down by the US Supreme Court in New York Times v. Sullivan, already referred to.
In England, whistle blowersin public as well as private sectors have been protected by the Courts.
On the question as to whether there is an obligation to report the misdemeanor of fellow workers to the employer, it was held, that this was dependent upon the individual contract and the circumstances. For example, in Sybron Corporation v. Rochem Ltd. (1983) (IRLR 253) (CA), the Court of Appeal held that by virtue of his position as a senior executive in a multinational corporation, the employee had a duty to disclose the involvement of his colleagues in a serious fraud upon the employer, even if that required him to disclose his own misdeeds (see also 'Grassing on a Fellow Employee in (1994) New Law Journal 685).
In 1968, the courts refused an injunction to a company trying to prevent its former Sales Manager revealing the existence of a price fixing cartel. The Company had put out a misleading circular, falsely blaming high prices on the new selective employment tax, when infact the increased prices would bring in substantial additional profits" (Initials Services Ltd. v. Putterill, (1968) 1 QB. 396). Lord Denning said:
"It seems to me that if that circular was misleading then it is at least arguable that it was in the public interest that it should be made known. I do not think that an employer can say to a servant; "I know 49 we are issuing misleading circulars but you are to keep quiet about it, and if you disclose it, I shall sue you for damages". The servant may well be justified in replying; "I cannot stand such conduct. I will leave and let the public know about it, so as to protect them"
According to Lord Denning an exception had to be made to the general principle of confidentiality of an employee where there is 'any misconduct of such a nature that it ought in the public interest to be disclosed to others'
In Lion Laboratories Ltd. v. Evans (1985) Q.B. 526, the Laboratories tried to prevent the Daily Express from publishing confidential documents of the Laboratory which manufactures Intoximeter breathalyzer. One showed that the head of the company's calibration department seriously doubted whether the device complied with the Home Office's requirements. It had reached the point where he was no longer prepared to continue to certify that they were accurate. The Court of Appeal refused the injunction sought by the Laboratories, finding that the disclosure was justified in the public interest to prevent the unjust conviction of motorists, and permit the vindication of those who might have been unjustly convicted.
In the famous Spycatcher No. 2, 1987 (3) WLR 776, the government argued that no government public interest defence could apply to members of the security service, in as much as they were under a life long and 50 absolute duty of confidentiality and that could, in no circumstances, be breached. The Law Lords accepted that the obligation was life long but that it was not absolute. Lord Greffiths stated that the public interest defence could, exceptionally, justify disclosing information. He observed:
"theoretically, if a member of the service discovered that some iniquitous course of action was being pursued that was clearly detrimental to our national interest, and he was unable to persuade any senior members of his service or any member of the establishment, or the police, to do anything about it, then he should be relieved of his duty of confidence so that he could alert his fellow citizens to the impending danger".