This coming Tuesday 25th June (why a Tuesday in the third week of the month?) will see the current whistleblowing laws amended. The Enterprise and Regulatory Reform Act 2013 (ERRA) introduces four amendments to the Employment Rights Act 1996. These are;
- A Protected Disclosure (“PD”) must be in the public interest (s.17 ERRA). This means that a worker will only be able to claim that his/her disclosure was in the public interest if he reasonably believes it to be so. This is designed to prevent employees from claiming that a breach of their own employment contracts is a PD. This closes a potential loophole created by the Parkins v Sodexho case that might be exploited now that employees have to wait two years to claim unfair dismissal rather than one. However, a worker who is the victim of discrimination in the workplace might argue that that the existence of discriminatory practices in the workplace is a PD. But presumably they would in most cases bring a claim for discrimination anyway?
- The current requirement that a disclosure be made in “good faith” is to be removed. Given the Government’s desire to make it harder for employees to make claims, sorry to cut red tape, I am surprised that this change has been made. Because PDs now have to be made in the public interest the motivation of individuals may be less relevant as @ariadneassoc suggested on Twitter yesterday, but it still seems to go against the overall thrust of these reforms. There is a new requirement though that means PDs not made in good faith can be subjected to a reduction of up to 25% in compensation awarded where it is “just and equitable in all the circumstances to do so”. It probably also reflects the reality that many PDs are made not with altruistic motives but out of self-interest.
- Employers can now be held vicariously liable for the actions of their employees in subjecting workers to detriment for blowing the whistle. Co-workers can now be held personally liable as well.
- The scope of those able to gain protection for making a PD is widened – which mainly affects contractors in parts of the NHS. No doubt this is brought about because of recent pubic scandals in the NHS. There is also the prospect that job applicants might be included within the definition of worker, but that is still subject to a call for evidence.
The new requirement for PDs to be made in the public interest will, no doubt, spark much satellite litigation over what that actually means. The imposition of vicarious liability on employers in respect of co-workers is to be welcomed (by Claimants if not employers). That may well be a powerful motivator to ensuring that whistle-blowers aren’t treated badly by their fellow workers because employers won’t be able to turn a blind eye to victimisation. However, how it will work in practice is different from theory and a worker planning to blow the whistle is still going to need to be a brave individual.