On 25 June 2013, UK whistleblowing law will change in a way intended to encourage disclosures in the public interest and avoid abuse of the protection that it affords.
The changes will do this to some extent, but employers will need to be wary and take steps to inform their employees of the perils of victimising those who raise concerns.
UK whistleblowing legislation was introduced by the Public Interest Disclosure Act 1998, following various financial and rail disasters in the 80s and early 90s.
Despite its name, the legislation never made any reference to the public interest in affording protection to whistleblowers. This changes on 25 June. From then, workers must reasonably believe that their disclosures are made in the public interest before any protection from dismissal or detriment is obtained.
This requirement has been introduced, at least in part, to close a loophole created by the case of Parkins v Sodexho. That case confirmed that a disclosure about a breach of an individual employment contract was sufficient for protection to be afforded.
No guidance has been provided on what ‘in the public interest’ will mean in this context; this will be left to the determination of individual employment tribunals. The person making the disclosure must reasonably believe it to be in the public interest, but their belief need not be correct for protection to bite. The public may well be interested in ensuring that employers comply with their contractual obligations and litigation is likely to be needed to determine whether the Sodexho loophole has effectively been closed.
The requirement for disclosures to be made in good faith will at the same time be removed. The rationale for this is, presumably, that if the public interest is served by disclosures, it matters not what motivation a worker has in making them.
This could lead to the somewhat peculiar outcome that disclosures may be made purely out of malice, or with the intention of personal gain, but will be protected provided they are reasonably believed also to be in the public interest. Tribunals will be able to reduce compensation by up to 25% where bad faith is proved.
Many employers’ whistleblowing policies state that disclosures made in bad faith will result in disciplinary action. Employers may wish to keep this wording to discourage bad faith disclosures, but much more care will now need to be taken before disciplining an employee for making such a disclosure.
The final change of note is the introduction of personal liability for whistleblowing detriments and corresponding vicarious liability of employers for the actions of their staff. This brings the protection in line with discrimination protection under the Equality Act 2010.
Employers can avoid vicarious liability by taking all reasonable steps to prevent their employees subjecting others to unlawful detriment. To demonstrate this, employers will need to ensure they update appropriate policies and train their workforce on how to treat disclosures made by employees and other workers.