New legislation concerning whistleblowing came into force on 25
June 2013. Broadly, the changes set out in the Enterprise and
Regulatory Reform Act 2013 ("ERRA"):
(a) amend the definition of a 'qualifying disclosure',
adding a requirement for such disclosures to be 'in the public
interest';
(b) remove the requirement for a protected disclosure to be made
in good faith. However, good faith is still relevant to remedy as a
disclosure made in bad faith could lead to a deduction from any
compensatory award; and
(c) now make employers vicariously liable for the acts of a
co-worker who causes a whistleblower to suffer a detriment.
To recap briefly:
- a qualifying disclosure must comprise the disclosure of information i.e. facts even if already known to the recipient; and
- The person making the disclosure must have a reasonable belief that one or more of the six specified types of malpractice has taken place, is taking place or is likely to take place. These six categories are: (i) a criminal offence, (ii) a breach of any legal obligation, (iii) a miscarriage of justice, (iv) danger to the health and safety of any individual, (v) damage to the environment and (vi) the deliberate concealing of information related to any of the above.
For any disclosure made on or after June 25th, 2013 there is an
additional requirement that the disclosure must, in the reasonable
belief of the worker making it, be in the public interest. It is
unclear how 'public interest' will be interpreted by the
Courts and it is likely that a focus on cases concerning the
Freedom of Information Act 2000 which contains a similar test will
be made. Guidance issued by the Information Commissioner's
Office suggests that promoting transparency, accountability and
participation could all weigh in favour of the public
interest.
Whilst the requirement to make a disclosure in good faith is now
removed, it still retains some relevance. If a disclosure is not
made in good faith any compensation awarded could be reduced (at
the Employment Tribunal's discretion) by up to 25%.
Lastly, an employee who causes a whistleblower to suffer a
detriment could be personally liable but so to, in light of changes
by ERRA, can an employer which could be held vicariously liable.
This was not previously the case. Therefore, employers should
review policies to ensure that sufficient notice (and training) is
given and provided to make employees aware that any victimisation
or detriment caused by an employee towards a whistleblower is
prohibited. This will go some way to assisting an employer to run
the "reasonable steps" defence if it finds itself on the
receiving end of an Employment Tribunal claim.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.