Whistling an unhappy tune

The Steve Moxon case shows that whistle-blowing legislation
may not protect employees if they go to the press. By Jon Robins

Some might say that Steve Moxon – the civil servant sacked last month from his job with the Immigration Service for breaching a “contractual duty of confidentiality” – is a whistle-blowing hero.

One analysis is that Moxon bravely lifted the lid on a nefarious attempt by his bosses to conceal an expected surge in visa applications from new EU members – the scandal that lit the fuse for the resignation of immigration minister Beverly Hughes when Moxon told his story to The Sunday Times.

Other lawyers feel that the relatively low-level administrative officer enjoying his moment in the limelight a little too much? Moxon, whose previous salary was £12,000 a year, is now a political commentator of sorts and has written a book, reported title The Great Immigration Scandal. He has also labelled the Home Secretary “an extremist” and told one broadcaster that “immigration is out of control”.

Not surprisingly Moxon would rather be seen as a hero. However, the motives of the whistleblower could become an important feature of his attempt to sue his former bosses for unfair dismissal in the employment tribunal.

A couple of weeks before Moxon was sacked last month, the Court of Appeal was considering the motives – mixed or pure – of those workers who stand up and are counted. In Street v Derbyshire Unemployed Workers’ Centre, the judges held that an honest belief in the concern was not enough to satisfy the good faith test in the Public Interest Disclosure Act (PIDA) where the disclosure was made for an ulterior purpose. Accepting that mixed motives can be easily attributed, the court held that an ulterior motive can negate PIDA’s good faith requirement only where the tribunal is satisfied that the ulterior motive is the main reason the whistleblower made the disclosure.

Public Concern at Work, the charity which represents whistleblowers, is anticipating some lawyers, albeit a small number, jumping on the ruling as a way of discrediting employees who seek to rely on a defence under PIDA. “The few lawyers that have actually suggested that everything is up for grabs are actually very blinkered and not thinking about what their clients’ best interests are,” says Guy Dehn, the group’s lawyer-director. In fact, the group gives the appeal judges’ ruling a qualified thumbs-up. “The effect of the previous Employment Appeals Tribunal decision was that the mere suggestion someone has a personal grudge means they aren’t acting in good faith and they’ve rejected that totally,” he continues. He would have liked the appeal judges to have given a more emphatic ruling. “It’s knocked that right out of the ground – but they got a four when they could’ve got a six,” he adds.

Some commentators have suggested that the Moxon challenge will test the strength – or otherwise – of the whistleblowing legislation.
Shadow Home Secretary David Davis is “outraged” that the man “primarily responsible for the Government having to take a grip on our failed immigration policy” has been so punished. “What this means is that under this Government, PIDA has lost any force or meaning,” he argues.

Dehn, who is not representing Moxon, strongly resists any analysis of the civil servant’s challenge as a test for the legislation. “The success of PIDA doesn’t rely on the Moxon case by any stretch of the imagination. Steve Moxon would love everyone to think that it does but it doesn’t,” he says.

So will the civil servant be protected by the legislation introduced by New Labour in 1998? “If the disclosure is going to be a qualifying disclosure for the act it has to be one of a number of things,” says Christine Jenner, an assistant in the employment department at Macfarlanes. As she points out, the sorts of wrongdoing that PIDA seeks to expose, and which are qualifying disclosures under the act, include criminal offences (“I don’t think so,” says Jenner on whether it could apply to Moxon); the breaching of legal obligations (“arguable”); dangers to health or safety of individuals (“no”); damage to the environment (“no”); and miscarriages of justice (“arguable – it could be said that some people are getting into the country at the expense of others”). If that is established, then Moxon has to demonstrate that the disclosure was made to the right person, and that he only went to The Sunday Times because he could not go to his bosses within his department.

“There is an issue about the degree to which he explained to ministers what the real issues were and it’s been reported that the story he gave to The Sunday Times was more extensive than the internal complaints he made,” says Steve Lorber, a partner in the employment and incentives group at Lewis Silkin. “Unless it is absolutely clear that you have to go to the press to blow the whistle, you might lose the protection of the legislation.”

Now the courts will have to deal with Street v Derbyshire Unemployed Workers’ Centre. “It’s undoubtedly put an extra hurdle in front of applicants seeking to use the whistleblower legislation,” says Raymond Jeffers, chair of the Employment Lawyers Association and head of employment at Linklaters. “It creates rather difficult factual issues in the tribunals if you now have to show a proper motive or, in the negative, you have to show no ulterior motive,” he says. However, Jeffers is comfortable with the appeal judges’ ruling that the good faith requirement should operate in this way. He says: “There has to be some element of public interest – after all, it’s called the Public Interest Disclosure Act – and it shouldn’t be used by people to extract retribution against colleagues or put pressure on an employer through litigation.”

PIDA came into force five years ago. Public Concern at Work has just launched a review of the legislation and is currently seeking views as to how it is working. If you wish to be added to the list of consultees, contact them on review@pcaw.co.uk.