New legislation concerning whistleblowing came into force on 25 June 2013. Broadly, the changes set out in the Enterprise and Regulatory Reform Act 2013 ("ERRA"):
- amend the definition of a 'qualifying disclosure', adding a requirement for such disclosures to be 'in the public interest';
- remove the requirement for a protected disclosure to be made in good faith. However, good faith is still relevant to remedy as a disclosure made in bad faith could lead to a deduction from any compensatory award; and
- now make employers vicariously liable for the acts of a co-worker who causes a whistleblower to suffer a detriment.
To recap briefly:
- a qualifying disclosure must comprise the disclosure of information i.e. facts even if already known to the recipient; and
- The person making the disclosure must have a reasonable belief that one or more of the six specified types of malpractice has taken place, is taking place or is likely to take place. These six categories are: (i) a criminal offence, (ii) a breach of any legal obligation, (iii) a miscarriage of justice, (iv) danger to the health and safety of any individual, (v) damage to the environment and (vi) the deliberate concealing of information related to any of the above.
For any disclosure made on or after June 25th, 2013 there is an additional requirement that the disclosure must, in the reasonable belief of the worker making it, be in the public interest. It is unclear how 'public interest' will be interpreted by the Courts and it is likely that a focus on cases concerning the Freedom of Information Act 2000 which contains a similar test will be made. Guidance issued by the Information Commissioner's Office suggests that promoting transparency, accountability and participation could all weigh in favour of the public interest.
Whilst the requirement to make a disclosure in good faith is now removed, it still retains some relevance. If a disclosure is not made in good faith any compensation awarded could be reduced (at the Employment Tribunal's discretion) by up to 25%.
Lastly, an employee who causes a whistleblower to suffer a detriment could be personally liable but so to, in light of changes by ERRA, can an employer which could be held vicariously liable. This was not previously the case. Therefore, employers should review policies to ensure that sufficient notice (and training) is given and provided to make employees aware that any victimisation or detriment caused by an employee towards a whistleblower is prohibited. This will go some way to assisting an employer to run the "reasonable steps" defence if it finds itself on the receiving end of an Employment Tribunal claim.