Trivial pursuit

As environmental issues become a mainstream concern, and more and more people wish to reduce their own environmental impact in their daily lives, it is not surprising that workers are also becoming increasingly vocal about the same issues in their workplace.

Employees may raise environmental concerns about a whole host of seemingly small issues, for example the use of inefficient incandescent light bulbs in the office or the food-miles in corporate catering. Legal advisers have to appreciate that while such complaints once may have been dismissed as 'too trivial', they now may entitle a worker to protection as a whistleblower on environmental damage.

Qualifying disclosure

The Public Interest Disclosure Act 1998 ('PIDA'), which came into force ten years ago, has kept the courts busy interpreting its provisions. The PIDA protects workers who made a 'qualifying disclosure' in the public interest in one of six specified ways from any detriment, including dismissal or selection for redundancy. A disclosure by a worker 'that the environment has been, is being, or is likely to be damaged' qualifies for protection (s.43B(1)(e) of the Employment Rights Act 1996 ('ERA')). Unfortunately, 'environment' is left undefined by the Act and, so far, there are no reported decisions assisting with what level the environmental damage must reach for a disclosure to qualify.

The section has not received much in-depth analysis from the commentators, either; the general view seems to be that only disclosures of serious environmental harm are covered. The IDS Employment Law Supplement 11, without any reasoning, simply states that it is unlikely that a disclosure relating to a lack of a recycling scheme would suffice and Bowers et al in Whistleblowing Law and Practice (Oxford University Press, February 2007) give examples of only serious environmental damage such as oil-spills and threats to the rainforest.

It would, however, be inconsistent with the purpose of the Act for the courts to adopt such a restrictive view. Parliament, by including this section in the Act, acknowledged that environmental protection is in the public interest and should be encouraged. Of course, it is true that due to the scale of environmental problems, any single employer's contribution to the global damage is bound to be minimal. However, why would it not be in the public interest for a worker to try to reduce that, albeit small, contribution to damage?

Indeed, it would be contrary to the grain of the PIDA and inconsistent with the approach taken in relation to other heads of qualifying disclosures for tribunals to require serious harm. Health and safety concerns, for example, can be raised even if the danger is not 'serious and imminent' (cf. s.100(1)(e) of ERA 1996); disclosure relating to the breach of any legal obligation will suffice (s.43B(1)(b)), which will even include breach of a term implied into the whistleblower's contract of employment (Parkins v Sodexho Ltd [2002] IRLR 109). Further, courts seem to try to encourage workers to raise all concerns; they will, for example, be protected even if they get some of the facts wrong (Darnton v University of Surrey [2003] IRLR 133), as long as the disclosure is in good faith (Street v Derbyshire Unemployed Workers' Centre [2004] IRLR 687).

Seeking alternative protection

Ultimately, suffering a detriment for making a protected disclosure is just another form of discrimination, as accepted by the EAT in Virgo Fidelis Senior School v Boyle [2004] I.C.R. 1210. Therefore, it would be surprising for tribunals to condone discrimination against a worker on the grounds that the disclosure did not pass some arbitrary de minimis level.

It should be noted that even if the tribunals were to adopt a restrictive reading of 'environmental damage', claimants may find alternative routes for protection. Workers could simultaneously rely on several heads of qualifying disclosures; for example, a breach of a legal obligation and/or a health and safety concern. Further, a worker may rely on the Employment Equality (Religion or Belief) Regulations 2003 to seek protection from less favourable treatment due to his/her ecological 'philosophical belief'. In a recent decision '“ Nicholson v Grainger plc and ors (unreported) '“ a tribunal accepted that belief that carbon emissions must be cut to avoid catastrophic climate change could amount to a philosophical belief for the purposes of the Regulations. Finally, the worker, manifesting his belief by making the disclosure, may rely on his right to freedom of thought and expression under the Human Rights Act, to secure a favourable interpretation of PIDA.

How to advise

Representatives must not assume that protection is not available simply because the environmental damage that the worker was seeking to avert seems 'trivial'. As long as the worker acted in good faith, he should be protected, regardless of the severity of the harm he sought to avert.

Employers should be advised to discuss the environmental concerns raised with the worker, decide what, if anything, can be done about the complaint and implement the change promptly; care should always be taken not to expose the worker to any detriment. Mishandling whistleblowing can be costly: the statutory cap on compensation does not apply; workers may recover for injury to feelings, aggravated and exemplary damages. Further, a disclosure ignored by the employer may encourage and legitimise (see s.43G(3)(e) of ERA 1996) external disclosure to the press resulting in adverse publicity.

No environmental concern, therefore, should be treated as 'too trivial' to warrant the protection available for whistleblowers.