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Introduction

Hello and welcome to our latest employment video. My name is Paul Griffin and I’m Head of the Norton Rose Fulbright Employment team in London.

In today’s video we’ll be looking at recent changes to the law on whistleblowing and Government plans for future reform.

Don’t forget to have a go at answering our quiz question at the end of the video for the chance to win a bottle of champagne.

Whistleblowing – the current law

The current law on whistleblowing originated from the Public Interest Disclosure Act 1998 which inserted new provisions in the Employment Rights Act to provide greater protection for workers reporting malpractice by employers or third parties.

The legislation protects workers from being subjected to any detriment on the grounds that they’ve made a protected disclosure. In addition, the dismissal of any employee will be automatically unfair if the reason or principal reason for the dismissal is that they made a protected disclosure.

In order for a disclosure to be a protected disclosure it must first be a “qualifying” disclosure.

What is a “qualifying” disclosure?

Firstly, there must be a disclosure of information – a mere allegation is not enough.

Next the subject matter of the information must relate to one of six types of relevant failure listed in the legislation. These are:

  • a criminal offence
  • a breach of a legal obligation
  • a miscarriage of justice
  • damage to the health and safety of any individual
  • damage to the environment; or
  • the deliberate concealing of information about any of these failures.

In addition, the worker must have a reasonable belief that the information tends to show one of the relevant failures. He doesn’t have to prove that the allegations are true – it’s enough that he personally believes that the relevant failure has occurred – and that the tribunal considers his belief to be reasonable.

Finally, for those disclosures made on or after 25 June 2103, there is the new requirement that the worker must reasonably believe that the disclosure is in the public interest.

The meaning of this new requirement is likely to be tested in litigation, but the emphasis of the requirement is on the disclosure rather than the worker – so that a disclosure which is made in the worker’s interests will nevertheless pass the test if it’s in the public interest also.

So, even though the purpose of the test was to reverse the effect of the decision in Parkins versus Sodexho in 2002 – in which an employee was protected in respect of a disclosure relating to a breach of his own employment contract – it may well still be possible for employees working in certain organisations to demonstrate that a complaint about a breach of their own employment contract is in the public interest.

On the other hand a disclosure made solely in the worker’s interests, or only to damage the interests of another, won’t pass the new test.

When is a qualifying disclosure also a protected disclosure?

Before 25 June 2013, in order for a qualifying disclosure to be protected, unless it was made to a worker’s legal adviser, it had to be made in good faith. This requirement has been removed and effectively replaced by the new requirement just mentioned that the worker must reasonably believe the disclosure to be in the public interest. It’s not necessary for the worker also to show that his motives are entirely altruistic.

However, if the disclosure is not made in good faith, the tribunal now has the power to reduce any compensation awarded to the worker by up to 25 per cent.

Generally speaking, once it’s been established that a disclosure is a qualifying disclosure, whether it’s also a protected disclosure will depend on who it’s made to.

The legislation encourages workers to blow the whistle directly to their employer, in which case the qualifying disclosure will be protected.

But if the employer isn’t responsible for the relevant failure, or the worker feels that he can’t disclose the information to his employer, then he can disclose the information to others specified in the legislation.

These include third parties reasonably believed to be responsible for the wrongdoing and also those authorised by the employer in a relevant policy or procedure.

Disclosure is also permitted to government ministers, legal advisers or certain others prescribed by government provided certain other conditions set out in the legislation are met.

Remedies

As already mentioned, the whistleblowing legislation provides workers and employees with certain protections.

Firstly, any employee who is dismissed because he’s made a protected disclosure will have a claim for automatic unfair dismissal. There is no minimum service requirement for this claim and the usual cap on compensation for unfair dismissal won’t apply.

Secondly, workers who are subjected to any detriment because they’ve made a protected disclosure, will have the right to bring a claim. Once again, compensation for unlawful detriment is also uncapped.

The fact that there’s no minimum service requirement for whistleblowing claims, and that unlimited compensation can be awarded, make them an attractive option for employees and workers who perhaps are not eligible to bring other claims.

Future reform

In July last year, the Government launched a call for evidence on the effectiveness of the current whistleblowing legislation, which included proposals to extend the categories of relevant failures and also considered whether financial incentives should be introduced for whistleblowers. The outcome of this call for evidence is still awaited.

In addition, the Whistleblowing Commission set up by the charity, Public Concern at Work, published a report last November recommending a number of changes to the law on whistleblowing. These included the introduction of a code of practice to be taken into account by the courts and tribunals when considering whistleblowing cases, and the proposal that the categories of relevant failures be open-ended, with a non-exhaustive list of examples to include gross waste or mismanagement and serious abuse of authority .

So - we wait to see what further changes to the law may be implemented by the government in the future, and whether these changes will mean that you need to amend your whistleblowing policies. We will of course keep you up to date with any developments in future videos.

Conclusion

This video is intended to give you a summary of the law on whistleblowing, but if you’d like any further information or have any questions on any aspects of today’s topic, then please don’t hesitate to contact us.