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When The Whistle Blows – Disclosures At Work And Protection For Whistleblowers

Joe Nicholls - DAS Law

  1. 27 June 2013
  2. Employment
  3. 0 comments
Blowing the whistle

A look at the laws on whistleblowing

Where an employee raises concerns about unlawful actions or malpractice in the workplace, they are protected from any punishment from their employer by the provisions laid out in the Public Interest Disclosure Act 1998.

These provisions have been integrated into the Employment Rights Act 1996 (“ERA 1996”) and have become ingrained as a fundamental safeguard that ensures employees can raise concerns without being worried about repercussions. The raising of these concerns, known as disclosures, is collectively referred to as "whistleblowing".

For a disclosure to qualify for this protection, the information being communicated must relate to either a criminal offence, a failure to comply with a legal obligation, a miscarriage of justice, a health and safety breach, damage to the environment, or the concealment of any of the other five issues. The unlawful activity can relate to the employee making the disclosure or another colleague, and must denounce the employer (or one of their employees).

Any dismissal or detriment occasioned as a result is itself unlawful and the worker could seek redress in the Employment Tribunal. There is no requirement for any minimum length of service to enable such a claim to be brought, and, as such, any dismissal would be "automatically unfair" for any worker and there would not be any cap on the level of compensation that could be awarded.

Problems and precedents

These rules meant that, in theory, an employee could raise a disclosure about an alleged breach of their own employment contract and, if dismissed as a result, could bring a claim regardless of length of service. The Employment Appeal Tribunal in the case of Parkins v Sodexho Ltd [2002] IRLR 109 set a controversial precedent, suggesting that a legal obligation arising from an employee’s terms of employment was not distinguishable from any other legal obligation. The EAT qualified this to a degree by asserting that there was a requirement for such a disclosure to have been made in "good faith", but there has never been any requirement for the disclosure to have any interest to the general public.

Changing the law on whistleblowing

There has recently been a series of changes to existing legislation governing whistleblowing. Sections 17-20 of the Enterprise and Regulatory Reform Act 2013 ("ERRA 2013") made changes to sections 43B-43K of the ERA 1996 which came into force on 25 June 2013.

Notably, any disclosures made after 25 June 2013 would only amount to qualifying as a disclosure if the individual making the disclosure formed a reasonable belief that it was in the public interest to do so (section 17 ERRA 2013). Furthermore, and perhaps somewhat contradictory, section 18 of the ERRA 2013 removes the requirement for such a disclosure to have been made in good faith.

The latter provision appears odd on the face of it, although it should be recognised that the disclosure cannot be both a deliberately false allegation and have been made with the reasonable belief that the disclosure had been in the public interest.

In addition, section 19 of the ERRA 2013 alters section 47B of the ERA 1996 to provide for vicarious liability for detriments suffered by employees of the employer. This means that, from 25 June 2013, a worker has the right not to be subjected to any detrimental act by another worker after having made protected disclosures.

Previously, this provision was limited to dismissals by the fellow worker only, but the new provisions have widened the protection. There remains, of course, the statutory defence that the employer took all reasonable steps to prevent the detriments being suffered.

Putting it into practice

It is not clear how the tribunals will interpret the new provisions but it is likely that an individual will be found to have formed a reasonable belief that their disclosure was in the public interest if it is sufficiently serious and affects a group of people, rather than just himself.

An example of the distinction may be if the complaint is that uniform or mandatory footwear for a particular job is causing pain or discomfort. On the face of it, this appears to be a private dispute between the worker and their employer, but if that uniform or footwear was worn by a large number of people in, for example, the fire service or the NHS, then it is reasonable to assume that the tribunal will accept that there was a public interest in the complaint being addressed.

It is worthy of note that there is still no actual requirement for the disclosure to be in the public interest, provided the worker reasonably believes that it is. This ultimately means that a perceived private dispute between an employee and an employer may be just that, but, provided that the employee reasonably believes that there is a wider, public interest in the resolution of the complaint for which he has been dismissed, he is likely to overcome this element of the dispute.

In conclusion

Despite it being very early days since the changes, within which none of the provisions will have been considered by the tribunal at even first instance, it appears that the reforms actually change very little. The overriding aim of the new legislation appears to be that a worker cannot negate the requirement for having two years' service to enable them to have the right not to be unfairly dismissed by presenting claims at the Employment Tribunal for disclosures made for their own gain.

The new provisions do provide claimants with one additional hurdle to overcome but, in reality, proving that they did not reasonably believe that their disclosure was in the public interest may be less straightforward, and a tribunal may be less reluctant to reject a claim based on this perception alone.

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