X V. The Office for Gas & Electricity Market (OFGEM) - new rights for whistle-blowers

Paul Michell

Rachel Barrett

In an important case for whistle-blowers, Paul Michell and Rachel Barrett have successfully argued that words ought to be read into the Utilities Act 2000 to allow the Claimant to continue his whistleblowing claim against OFGEM in the employment tribunal, in circumstances where he would otherwise be committing a criminal offence by bringing it.

The Claimant asserts that he was mistreated because he raised serious concerns about OFGEM’s implementation of a new smart meter scheme. OFGEM sought to argue that because of s.105(9) of the Utilities Act it, the parties would be committing a criminal offence if they gave evidence at tribunal relating to the operation of the scheme or to the Claimant’s disclosures, and that it was illegal for OFGEM or the Claimant to give disclosure of copies of the relevant ‘whistleblowing’ documents.

Employment Judge Lewzey agreed that with the parties that, on the face of it, the Utilities Act effectively criminalised the Claimant’s claim and prohibited disclosure of key documents. However, because of his rights under Article 6 (fair trial) and Art 10 (freedom of expression) of the European Convention on Human Rights, and because of the tribunal’s obligation under the Human Rights Act to give effect to those rights where “possible”, Employment Judge Lewzey ruled that it was appropriate to ‘read’ words into the Utilities Act to exclude whistleblowing claims from criminal sanctions.

This is a working illustration of how, even post-Brexit, the Human Rights Act can be used to protect fundamental rights such as freedom of expression, using the same interpretative techniques which have been used to protect European law-based rights.

A copy of the judgment is here.

OFGEM has appealed the decision.