2013 saw a number of key changes to the whistleblowing legislation through the passing of the Enterprise and Regulatory Reform Act 2013, principally the requirement that disclosures are only protected under the Act if they are made in the public interest and in good faith.

The Enterprise and Regulatory Reform Act 2013 amended the existing whistleblowing legislation to provide for:

  • a new public interest requirement for qualifying disclosures;
  • the removal of the good faith requirement for protected disclosures;
  • a possible reduction in compensation if a disclosure is not made in good faith;
  • the introduction of vicarious liability for the employer where detriment is caused to a whistleblower by another worker; and
  • the extension of the meaning of "worker" to cover contractors in the NHS and the power to further extend it.

In case law, the Employment Appeal Tribunal confirmed in the case of Onyango v Berkeley t/a Berkeley Solicitors [2013] confirmed that a protected disclosure may be made after the employment ends and that there is no statutory limitation that protected disclosures must be made during the relevant employment. 

Looking to the future of the whistleblowing legislation, the government published a call for evidence on the current legislation in July 2013 seeking views as to whether changes are required to ensure that whistleblowers are adequately protected and that workers are not discouraged from coming forward about wrongdoing. The government is considering:

  • whether the existing categories of disclosure effectively capture all potential instances of wrongdoing which may be in the public interest and whether further categories need to be introduced;
  • whether the existing methods of disclosure are effective;
  • whether the definition of worker should be extended further to include other groups which are currently excluded including whistleblowers seeking new employment;
  • the effectiveness of financial incentives for whistleblowing; and
  • the introduction of a non-statutory code of practice to guide employers on the best practice principles for whistleblowing policies within their organisations.