Changes to the protection for whistleblowers implemented by the Enterprise and Regulatory Reform Act take effect on 25 June.
The Jimmy Saville, Hillsborough and Mid Staffs scandals could all be seen as cases where less damage would have been done if people had spoken out earlier. Although the reasons for these scandals are varied and complex, they exposed the legal protection for whistleblowers to closer scrutiny.
Partly in response to these concerns, significant changes to our whistleblowing legislation were introduced in the Enterprise and Regulatory Reform Act 2013 which received Royal Assent in April 2013. These new provisions apply to disclosures made on or after 25 June.
Overall, they 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.
Importing a public interest test
Protection for whistleblowers was first introduced by the Public Interest Disclosure Act 1998. Despite its title, this Act did not explicitly require disclosures by workers to be in the public interest to qualify for protection. Rather, the Act conferred protection depending on the type of information revealed: for example the commission of criminal offences, danger to life or damage to the environment. While a number of the listed categories did clearly involve matters of public interest, there is one particular category – the failure to comply with legal obligations - which has been interpreted more widely. Over ten years ago the case of Parkins v Sodexho established that breaches of a contract of employment by an employer could count as a failure to comply with legal obligations for these purposes. That meant that a much wider range of disclosures were protected than had been originally thought when the 1998 Act was first passed.
The Government has now acted to reverse the effect of Parkins v Sodexho by adding an explicit requirement that all disclosures must be in the public interest as well as falling into one of the categories listed in the original Act. What is in the public interest has not been defined.
Removing the good faith requirement
Under the previous law, most disclosures also needed to satisfy a “good faith” requirement in order to qualify for protection. In recent years this has led to some cases which would otherwise qualify for protection being thrown out because a tribunal decided that the worker was acting out of spite or revenge.
Given that there is now an express requirement for the disclosure to be in the public interest, the Government has concluded that the good faith requirement can be removed. However a new provision has been inserted that allows a tribunal to reduce compensation by up to 25 per cent where it finds that the employee has not acted in good faith.
Imposing vicarious liability
Previously whistleblowers were only protected from actions by their employer. Unlike our discrimination legislation, there was no explicit protection if they were victimised by their co-workers. Additionally, there was no provision which made an employer vicariously liable in these circumstances.
Changes introduced by the Act now replicate the protection currently available to workers from unlawful discrimination. These new provisions impose personal liability on co-workers and other agents of an employer if they subject a worker to any kind of detriment on the ground that he or she has made a protected disclosure. 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.
These measures close the loophole highlighted by the recent case of NHS Manchester v Fecitt, where the Court of Appeal concluded that an employee was not entitled to a remedy against her employer under the whistleblowing legislation after she had been cold-shouldered and bullied by co-workers because of a protected disclosure she had made.
Definition of worker
Case law has made it clear the definition of worker is wide enough to cover former as well as present employees, but applicants for jobs are not protected, as they are under our discrimination law. There is a provision in the Act which gives the Government power to widen the definition of worker by secondary legislation should it decide that this is necessary.