Jog Hundle looks at forthcoming changes to the protection for whistleblowers due to be implemented in the Summer

Importing a public interest test

Protection for whistleblowers was first introduced by the Public Interest Disclosure Act 1998. Despite its title, this Act does not explicitly require disclosures by workers to be in the public interest to qualify for protection. Rather, the Act confers 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 will 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 Act was first passed.

The Government has now acted to reverse the effect of this case 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 Act. What is in the public interest has not been defined.

Removing the good faith requirement

Under the existing law, most disclosures also need 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 will now be 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 which 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

At present whistleblowers are only protected from actions by their employer. Unlike our discrimination legislation, there is no explicit protection if they are victimised by their co-workers. Additionally, there is no provision which makes an employer vicariously liable in these circumstances.

Amendments have now been put forward which replicate the protection currently available to workers from unlawful discrimination. These new provisions will 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.

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. The Government has introduced a provision which will give it power to widen the definition of worker by secondary legislation should it decide that this is necessary