Whistleblowing has been a hot topic in the NHS since Gary Walker broke cover in the middle of February to claim he had been gagged after his dismissal as chief executive of United Lincolnshire Hospitals NHS Trust. The Enterprise and Regulatory Reform Act 2013 has and will make significant changes to our whistleblowing legislation.
These amendments, which came into force on 25 June 2013, aim to increase protection for “genuine” whistleblowers, while plugging a loophole that conferred protection on employees who were in effect complaining about their own personal employment position rather than matters in the public interest.
In particular, the Public Interest Disclosure Act 1998 conferred protection on employees who disclosed a failure to comply with legal obligations. This was interpreted widely so that breaches of a contract of employment by an employer could count as a failure to comply with legal obligations for these purposes.
The Government has acted to reverse this by adding an explicit requirement that all disclosures must be in the public interest, as well as falling into one of the categories specified in the Act. What is in the public interest has not been defined.
Given the above, the Government has concluded that the “good faith” requirement can be removed. However, tribunals can reduce compensation by up to 25 per cent where it is found that an employee has not acted in good faith in making a disclosure.
A further amendment, slated for implementation over the summer, relates to vicarious liability. At present whistleblowers are only protected from actions by their employer, with no protection if they are victimised by co-workers. Amendments have been put forward which replicate the position available to workers regarding unlawful discrimination.
This will impose personal liability on co-workers if they subject a worker to any kind of detriment on the ground that a protected disclosure has been made and, in addition, employers will be vicariously liable for these actions, subject to a defence if they have taken “all reasonable steps” to prevent their workers from acting in this way.