Increased protection for whistleblowing

Whistleblowers already receive protection in law. They are protected from dismissal and from being subjected to any detriment on the ground that they have made a protected disclosure (i.e. blowing the whistle) subject to certain requirements in regard to the nature of the disclosure, whether it is made in good faith and to whom the disclosure is made. For a general overview of whistleblowing and the law, please see our previous article here. Despite this, the Government wants to improve the protection afforded to whistleblowers and has announced some changes.

The most significant change proposed is the removal of the requirement for protected disclosures to be made “in good faith.” The good faith requirement means that if the disclosure is motivated by malice or personal gain then it will not qualify for protection in law. The removal of this requirement is proposed to be replaced by providing Employment Tribunals with the power to reduce any compensation awarded to a claimant by up to 25% if the protected disclosure was not made in good faith.

In addition to the above, a related announcement was made by the Department for Business Innovation & Skills on 21 February 2013. This said that further protection will be introduced to protect whistleblowers from being bullied or harassed by colleagues by making employers vicariously liable for detrimental acts by the whistleblower’s colleagues. Vicarious liability is a legal term which deals with the situation where someone is held responsible for someone else’s action – please see our previous article on this term here. Employers will have a defence where they can show that they took all reasonable steps to prevent the whistleblower’s colleagues from acting in the manner they did. This is the same principle as exists in discrimination legislation.

Both of the amendments are going forwards as part of the Enterprise and Regulatory Reform Bill, which is currently in the House of Lords. You can track the progress of the Bill here.

To cover all points about whistleblowing law, readers should note that the original drafting of the Bill also includes a change to close a loophole in current law. This will require a qualifying disclosure, made in the reasonable belief of the worker, must also be “in the public interest.”  The loophole was emphasised in the case of Parkins v Sodexho (2001) because it established that an employee could attract whistleblower status purely for raising issues about potential breaches of his/her own contract of employment. The Government does not feel this is in the spirit of the legislation and seeks to close the loophole.

The message from the Government is that whistleblowing needs to be taken far more seriously by employers, and it can be extremely costly not to, since there is no limit on the compensation that can be awarded by Employment Tribunals for successful claims.

If you need assistance with a whistleblowing policy, or for advice on any specific situation then please contact the Pure Employment Law team on 01243 836840 or [email protected].

Please note that this update is not intended to be exhaustive or be a substitute for legal advice. The application of the law in this area will often depend upon the specific facts and you are advised to seek specific advice on any given scenario.