28 February 2013 #Employment
Whilst whistleblowers are protected against detriment and dismissal as a result of blowing the whistle, they often suffer in more subtle ways such as ostracism by their colleagues, harassment and punitive transfers without reason or cause.
Another source of controversy has been the loophole that allows disclosures made in relation to a breach of an employee’s own employment contract to become protected and subsequently the basis of an employment tribunal claim. This was seen as an abuse of the legislation and allowed employees to bring spurious claims in order to circumvent the requirement for sufficient service to bring an unfair dismissal claim.
The government is intending to introduce a number of changes to whistleblowing law through the Enterprise and Regulatory Reform Bill (“ERRB”).
The new "public interest" test for qualifying disclosures has the intention of returning whistleblowing to its publically motivated form. However it is arguable that the public interest test creates uncertainty and will deter people from coming forward. In response to this concern over the past few weeks the government has introduced a flurry of changes to swing the balance back in the employees favour; the most controversial being the removal of good faith from the definition of a protected disclosure. Some see this as counterintuitive as the purpose of protecting whistleblowers is to prevent individuals suffering a detriment after blowing the whistle regarding wrongdoing. This obliges the person to act in good faith. Under the proposed amendment even if a disclosure was made in bad faith, a tribunal could only reduce compensation by 25%.
Finally, announced this week is the new protection brought about by extending vicarious liability. Currently workers who make protected disclosures are protected from adverse treatment by their employers. The proposed change extends protection by introducing a provision that treats detrimental acts of one employee towards another as being done by the employer, making the employer responsible. It also includes a defence for employers that are able to show that they took all reasonable steps to prevent the detrimental treatment of the colleague.
Whether all the proposed amendments will be implemented is unclear but we will update you with any further announcements.