Speaking up

46. There is some legal protection under the Public Interest Disclosure Act 1998 (PIDA) (for those in England, Wales and Scotland) and the Public Interest Disclosure (Northern Ireland) Order 1998 for certain persons speaking up about certain matters. This law aims to protect whistleblowers from negative treatment or unfair dismissal.

47. In order to qualify for protection, the speaking up must be a ‘protected disclosure’. Section 43B of the Employment Rights Act 1996 states that a protected disclosure is:

“any disclosure of information which, in the reasonable belief of the worker making the disclosure, is made in the public interest and, tends to show one or more of the following:

• that a criminal offence has been committed, is being committed or is likely to be committed;
• that a person has failed, is failing or is likely to fail to comply with any legal obligation to which he is subject;
• that a miscarriage of justice has occurred, is occurring or is likely to occur;
• that the health and safety of any individual has been, is being or is likely to be endangered;
• that the environment has been, is being or is likely to be damaged; or
• that information tending to show any matter falling within any one of the preceding paragraphs has been, is being or is likely to be deliberately concealed.”

48. There are some minor differences under the Public Interest Disclosure Order (Northern Ireland) 1998 which require the person speaking up to reasonably believe that the allegations they make are ‘substantially true’ and to believe that they are speaking up to the appropriate ‘prescribed person’ (see section C2 for more information on prescribed persons).

49. The protected disclosure must also be made by a ‘worker’. In this context, ‘worker’ includes (but is not limited to):

• employees and contractors, including agency workers and locums (including self-employed locums)[6];
• someone who works as a person providing general ophthalmic services in accordance with arrangements made by a:

1. Health Authority under section 29, 35, 38 or 41 of the National Health Service Act 1977, or

2. Health Board under section 19, 25, 26 or 27 of the National Health Service (Scotland) Act 1978;

• is or was provided with work experience provided pursuant to a training course or programme or with training for employment (or with both) otherwise than—

1. under a contract of employment, or

2. by an educational establishment on a course run by that establishment.

50. The majority of our registrants will fall under one of the above categories of ‘worker’, and most patient/public safety risks encountered in the course of optical practice will fall within the definition of a ‘protected disclosure’. If you are not sure, seek independent advice on your status and eligibility for protection.

51. Protection under PIDA applies even if you are wrong or mistaken about your concerns, provided you have raised them with the reasonable belief that it was in the public interest.

52. It should be noted that your contract of employment or similar cannot legally prevent you from making a protected disclosure, even if its terms appear to do so – section 43J(1) of the Employment Rights Act 1996 renders contractual terms void insofar as they purport to preclude the making of a protected disclosure. If you find yourself in this situation, you should seek independent advice from an employment lawyer.

53. We expect our business registrants to be aware of public interest disclosure legislation and to comply with it. We have the power to take action against them if they do not.

[6] Covered under the Employment Rights Act 1996.