Government whistleblower’s disclosures were not protected by Human Rights Act

EAT overturns earlier ‘unconstitutional’ decision covering civil servant’s right to free speech

A decision that a civil servant could continue his whistleblowing claim against a government office, in circumstances where he would otherwise be committing a criminal offence by bringing it, has been branded “unconstitutional” by the EAT

In an initial tribunal, Judge Lewzey held that Mr G Pytel’s rights to freedom of expression and a fair trial (sections 10 and six of the Human Rights Act) won out over a clause in the Utilities Act which would have meant giving evidence at a tribunal was a criminal offence. 

Pytel was, and remains, an economic analyst in the civil service, employed by the Office for Gas and Electricity Markets (OFGEM). He worked on the implementation of a new smart meter scheme measuring the energy consumption of households. He raised concerns he had about the project with his managers and presented his claim to an employment tribunal on 26 July 2016.

The subsequent dispute arose from whether Pytel could or could not disclose before the tribunal without being at criminal fault. Pytel’s representatives stated he “reasonably believed his disclosures to be in the public interest”. 

Lewzey noted that on the face of it, the Utilities Act criminalised Pytel’s claim and prohibited disclosure of key documents. However, she ruled it was possible to read the act as excluding whistleblowing claims from criminal sanctions outlined in section 105 (9). 

Sitting for the EAT, Justice Elizabeth Laing held Lewzey “took a too narrow view.” She claimed Lewzey was wrong to conclude parliament had intended to exclude whistleblowers from section 105 of the Utilities Act – General Restrictions on Disclosure of Information – and said its meaning was “unambiguous”.

Moreover, Laing drew attention to clause 105 (2), which stated that the person whose information was at issue could consent to its disclosure, or withhold consent. She wrote: “In this case, the owners of the information were asked to consent and refused. The [earlier] interpretation overrides their withholding of consent.” 

She went on to dismiss the first tribunal’s attempt to remove criminal liability from acts to which it would otherwise attach as an “unconstitutional step,” adding it was clear only parliament or the secretary of state had the jurisprudence to make such an amendment. 

Laing also said Lewzey’s interpretation of the Human Rights Act had been incorrect. She said: “The ET’s amendment is not only contrary to parliament’s intention, but is, by necessary implication, contradicted by the [Human Rights] Act. The HRA preserves parliamentary sovereignty by recognising that parliament is free to legislate in a way which is incompatible with convention rights, a point which I am not sure that the EJ [employment judge] appreciated.”

Judge Laing concluded it was not for the courts to estimate the wider repercussions of an amendment to a clause in a much larger document, comparing it to “a lay person [who] would think twice before trying to fix one cold radiator in the attic of a huge building by opening up the boiler in a distant basement and loosening a random nut”.

She concluded: “This is a policy area in which parliament, or the secretary of state, is in a better position to see the big picture. If parliament and the secretary of state have decided, as it is apparent that they have, that this type of information cannot be used in whistleblowing claims, that is a matter for them, not for the courts.

“It follows that the ET’s consequential directions about disclosure were wrong in law and are of no effect. Neither the claimant nor the respondent suggested that the EAT should remit this case to the EJ for her to reconsider the application for disclosure. They invited me to decide the issue. I bear in mind, that I can only substitute my decision for the EJ’s if there was only one decision which was open to her.” 

Associate director of Croner, Paul Holcroft, said the case highlighted the restrictions placed on an employee’s ability to progress a whistleblowing claim because of the interaction with other laws which effectively “throw a blanket” over certain pieces of information.

“Even the Human Rights Act could not provide the claimant with the access needed and it was confirmed that, in circumstances such as these, employers can rely on laws specific to their industry to refuse disclosure of information that may be pertinent to a whistleblowing case.”