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Whistleblowing: A
Human Right under
Threat?
Catherine Hobby
University of East London
IER Conference: Human Rights vs Bill of Rights:
What’s in it for workers?
London, 27th April 2016
Importance of Whistleblowing
“Whistleblowers play an important role in
exposing poor practice in firms and they
have in the past few years contributed
intelligence crucial to action against
firms and individuals”
Financial Conduct Authority (FCA) on its
introduction of new rules on whistleblowing in
October 2015
Whistleblowing as a human right
 Article 10 of the European Convention on
Human Rights (ECHR) provides workers with
a right to freedom of expression and so has
relevance for whistleblowers
 The statutory rights introduced by the Public
Interest Disclosure Act 1998 (PIDA) can be
enhanced by having regard to the human
rights incorporated by the Human Rights Act
1998 (HRA 1998) and specifically the right to
freedom of expression.
The Right to Freedom of
Expression
Article 10 of the ECHR:
“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. ...”
(Article 10 - Paragraph 1)
Workers have a right to freedom of
expression
The European Court of Human Rights (ECtHR)
has made it clear that the right to freedom of
expression is relevant and applicable in the
workplace. In Steel and Morris v UK the
European court held freedom of expression
constitutes:
‘one of the essential foundations of a
democratic society and one of the basic
conditions for its progress and for each
individual’s self-fulfilment’
Right to Disclose
“Hence Article 10 operates as a protection
for whistle-blowers who act responsibly”
Lady Hale (leading judgment) in Supreme Court
case of Clyde & Co LLP v Bates van
Winkelhof [2014] UKSC 32, relying on the
European case of Heinisch v Germany where
the right was found to extend to a nurse in a
nursing home who reported her employers to
the authorities because of concerns over
understaffing.
Qualifications
The right to freedom of expression is a
qualified right and so can be interfered
under Article 10(2) for express
legitimate aims including:
• ‘In the interests of national security’;
• ‘For the protection of the reputation or rights
of others’; and
• ‘For preventing the disclosure of information
received in confidence’.
Everyone has the right to respect
for a private life
A human right that conflicts with the right to
freedom of expression is the right to respect
for a private life (Article 8 of the ECHR) which
is also a qualified right.
Courts have interpreted this right to develop a
tort of misuse of private information
Thus an employer could seek to rely on this
right to interfere with a worker’s right to blow
the whistle
Reliance on ECtHR
 Section 2 of the HRA 1998 requires the
courts to “take into account” judgments of the
ECtHR
 Two relevant judgments of the ECtHR:
Guja v Moldova (2008) Application 4277/04.
Heinisch v Germany Application 28274/08, 21st
July 2011.
Duty to have regard to human
rights
 Section 3 of the HRA 1998 places courts and
tribunals under an interpretative duty to make
all legislation, including employment
provisions, compatible with human rights - “so
far as it is possible”.
 PIDA inserted rights into the Employment
Rights Act 1996 (ERA 1996) to protect
whistleblowers against unfair dismissal and
victimisation. Part IV of the ERA 1996 should
be read and given effect with regard to the
right to freedom of expression
Reluctance to engage with human
rights
“The appeal to Article 10 .. does not assist. …
It is well within the margin of appreciation to
be accorded to a member state that it should
enact careful and detailed provisions as the
UK Parliament has done in enacting Part IV
of the Employment Rights Act”
Mr Justice Langstaff in Clay v Lewisham and
Greenwich NHS Trust and Health Education
England UK/EAT (Judgment 9th March 2016)
British Bill of Rights
Repeal of the Human Rights Act 1998
“This will break the formal link between British
courts and the European Court of Human
Rights, and make our own Supreme Court
the ultimate arbiter of human rights matters in
the UK”.
Conservative Party Manifesto, 2015
Emphasis on Freedom of
Expression?
Source quoted in The Telegraph on 9th April
2016
“Ministers are “actively considering” a
change in the law which will stop
wealthy individuals – including famous
public figures – using Labour’s Human
Rights Act to stop newspapers
publishing material that is in the public
interest.”
A new human right to disclose in
the public interest
Will a British Bill of Rights safeguard the rights
of whistleblowers by providing a right to
disclose in the public interest?
The 2014 Conservative Party document,
Protecting Human Rights in the UK stated:
“ We will not introduce new basic rights through
this reform; our aim is restore common sense,
and to tackle the misuse of the rights
contained in the Convention.”
Conclusion
“There is indeed a point to the Human Rights
Act’
(Lady Hale, What’s the point of human rights?,
Warwick Law Lecture delivered on 28th
November 2013)
The repeal of the HRA 1998 will deny
whistleblowers access to the important right
of freedom of expression that could be of
benefit to them