The Government has decided on yet another amendment to the legislation protecting whistleblowers from detrimental treatment at work. In addition to the two changes already scheduled in the Enterprise Bill - a requirement for protected whistleblowers to be acting "in the public interest" and the removal of the requirement for the disclosure to be in good faith (replaced by a power for tribunals to reduce compensation by up to 25% if the disclosure was not made in good faith), there will be a new provision making employers potentially vicariously liable for the detrimental acts of workers. There will be a statutory defence if the employer can show that it took all reasonable steps to prevent the detrimental treatment.
This issue dates back to the controversial whistleblowing case NHS Manchester v Fecitt. The case involved three NHS nurses who raised concerns about the qualifications a colleague claimed to hold and were subjected to hostility from colleagues. Amongst other things, the Court of Appeal found that an employer could not be vicariously liable for acts of victimisation by its employees. Unlike discrimination (or harassment under the Protection from Harassment Act 1997), it is not unlawful for workers to victimise whistleblowers and in circumstances where the employees had committed no legal wrong, there can be no vicarious liability.
The latest amendment changes this, by adding provisions, similar to those in the Equality Act, making:
- employees personally liable for detrimental treatment if this takes place in the course of employment; and
- agents liable for detrimental treatment authorised by the employer as principal; and
- treating detrimental acts of one worker against another in the course of employment (whether or not with the employer's knowledge or approval) as being done by the employer. There is defence for the employer if it can show it took "all reasonable steps" to prevent it.
This change will make it essential for employers to implement, review and operate a whistleblowing policy with the same rigour as discrimination policies.