Whistleblowing Reforms: What Employers & Employees Need To Know
Significant changes were recently made to the law on whistleblowing. They only apply to disclosures made from 25 June 2013.
Whistleblowing protection was introduced in the Public Interest Disclosure Act 1998 yet, despite the title, there was not any test that disclosures were actually “in the public interest.” Now, for a disclosure to be a qualifying disclosure, the whistleblower must have a reasonable belief that the disclosure is in the public interest. The main purpose of this change was to reverse the effect of the decision in Parkins v Sodexho which established that a complaint about a breach of someone’s own employment contract was a protected disclosure. It remains to be seen whether it is entirely successful as employees working in certain organisations may be able to show that complaining is in the public interest.
An allied amendment is to remove the requirement that a qualifying disclosure made to anyone other than a legal advisor had to be made “in good faith” for it to be protected. This has also been removed from 25 June 2013. This change is consistent with long standing criticism of the legislation that the protection should derive from the nature of the disclosure rather than the motivation for it.
However, to counterbalance this relaxation, new rules introduce a discretion for Employment Tribunals to the effect that “where … it appears to the tribunal that the protected disclosure was not made in good faith, the tribunal may, if it considers it just and equitable in all the circumstances to do so, reduce any award it makes to the complainant by no more than 25%.”
Finally, from 25 June 2013, the concept of vicarious liability has been added to whistleblowing protection. Previously there was no statutory provision whereby the employer was treated as liable for detriment caused to one worker by another worker in the course of employment as the wording only applied where a worker had been subjected to a detriment by their employer. Now the act of a worker in subjecting a whistleblower to a detriment will be treated as having been done by the employer. The employer will have a defence if it they took all reasonable steps to prevent the detrimental treatment. This brings the protection in line with discrimination law.