Changes Made to Whistleblowing Protection
21 June 2013 by Lawrence Adams
Changes are being made to whistleblowing provisions by the Enterprise and Regulatory Reform Act 2013. These changes will come into force on 25 June 2013 and will affect disclosures made after this date. It is expected that further changes will be made at a later date.
25 June 2013 Changes
Changes made on 25 June 2013 will affect all protected disclosures made by an employee after this date. A protected disclosure is defined at law as the release of information which, in the reasonable belief of the disclosing worker, shows an element of wrongdoing.
At the moment, a worker must make a protected disclosure in good faith, otherwise whistleblowing protection is not available. This will change for disclosures made after 25 June 2013. Disclosures made in bad faith after this date will now receive protection, however, if an Employment Tribunal considers that a disclosure has been made in bad faith, it has discretion to reduce any compensatory award by up to 25%.
The changes extend further too. Whistleblowing provisions do not currently require an element of public interest. This has lead to many claims which relate to disclosures made about a workers own employment situation rather than the state of employment generally. A worker must also now reasonably believe that their disclosure is in the public interest effectively reducing the scope for potential claims.
The Enterprise and Regulatory Reform Act 2013 also contains a further provision of relevance to the issue of whistleblowing. These are expected to insert provisions that hold employee’s personally liable for any detriment or dismissal suffered by a worker making a protected disclosure. This provision is expected to be backed up by a further provision holding employer’s vicariously liable for their employee’s actions.
To take account of these changes, businesses are advised to update existing whitstleblowing policies and to make managers aware of potential situations where a protected disclosure may occur.
Employees are also advised to take note of the further hurdle added by the new public interest test, which remains undefined by legislation. Employees should also note that they could face personal liability under whistleblowing regulations for their actions in the course of their employment.
Whistleblowing is a rapidly changing area of the law with case law and legislative changes regularly modifying the approach and interpretations applied to each individual situation. For more information on whistleblowing provisions or for general employment law enquiries, contact Beth Baird ([email protected]) or Lawrence Adams ([email protected]) on 01206 835 230.