Important changes to the UK whistleblowing regime come into force today, 25 June 2013. Their effect is to close loopholes identified in earlier legislation and to bring the whistleblowing regime more into line with its original intention of protecting workers who speak up about unlawful issues or practices in the workplace.
What Has Changed?
What Qualifies as a “disclosure”
Disclosures made on or after 25 June 2013 will attract the protection of the whistleblowing regime:
- only if the worker making the disclosure has a reasonable belief that the disclosure is made in the public interest (until now there was no public interest requirement); and
- even if the worker does not make the disclosure in good faith (until now, good faith was a pre-requisite for protection).
The old regime will continue to apply to any disclosures made before today.
Adjustment to Compensation
Good faith will remain relevant in the context of compensation. A tribunal now has the power to reduce the compensation awarded to a whistleblower by up to 25 per cent if it considers the disclosure not to have been made in good faith.
A loop-hole in the earlier legislation meant that employers were able to avoid liability if a whistleblower was subjected to a detriment by a co-worker.
Employers will now be vicariously liable if, in the course of employment, a whistleblower is subjected to a detriment by a co-worker or by an agent of the employer. An employer will be able to defend claims on the basis that:
- it took all reasonable steps to prevent the worker acting towards the whistleblower in the way he or she did; or
- the agent was acting without the employer’s authority.
Individual workers can now also be found personally liable if they victimise co-workers who have blown the whistle.
What Does This Mean for Employers?
On balance, the overall picture is positive for employers. The introduction of the public interest requirement will effectively bar any complaints relating to the breach of an individual’s employment contract, except in the rare case where a complaint about that breach is also in the public interest. This should help to eliminate opportunistic grievances and subsequent claims from workers seeking either to engineer a claim or to remove the cap on unfair dismissal damages.
Although removal of the good faith requirement and introduction of vicarious liability for the actions of a whistleblower's co-workers will, in principle, pave the way for more claims to be brought, following the letter and spirit of your whistle-blowing policies will help you to mitigate any risk significantly.