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Malcolm Gregory

Lifting the lid on whistleblowing legislation

Employers should be aware that there are developments to whistleblowing legislation which affect protected disclosures made on or after 25 June 2013.

Whistleblowing legislation offers protection to workers who disclose information about a dangerous or illegal activity or omission that has occurred.

1.  The disclosure must be in the public interest

A qualifying disclosure must, in the reasonable belief of the worker, be in the public interest. There is nothing in the legislation to define what the “public interest” means, however we expect this to cover something that affects a class of people and not just one individual. This change closes the loophole that existed previously where an employee could be protected when raising a complaint about a breach of his/her own employment contract, as this was technically a breach of a legal obligation.  Such complaints are no longer protected.

2.  Removal of the good faith requirement

The legislation now expands whistleblowing protection to those who make disclosures in bad faith. For example, employees who make disclosures for personal gain or out of spite, rather than to put right a wrongdoing, will be protected. However employees will still need to satisfy a tribunal that they reasonably believed the content of their disclosure to be true.  If a disclosure is made in bad faith, the tribunal will have the power to reduce compensation by up to 25 percent.

3.  Introduction of vicarious liability for employers

Employers are already vicariously liable for the actions of their employees under other employment legislation, such as the Equality Act. Whistleblowing has now been brought in line with this. Employees who subject their whistle-blowing colleagues to a detriment are still personally liable, but their employer will now also be vicariously liable for the employees’ actions. Employers will only have a defence if they took all reasonable steps to prevent the detrimental treatment.

4.  Change to the meaning of a “worker”

The definition of “worker” has now been amended (for the purpose of whistleblowing only) to cover certain NHS workers who previously fell outside of the definition.

Please contact a member of our employment law team if you have any queries on this or would like some assistance reviewing and/or amending your whistleblowing policy.