As the Enterprise and Regulatory Reform Bill wends its way through parliament, the government keeps adding miscellaneous bits and bobs to it. Perhaps most noteworthy are the proposals to implement regulation of the Press post-Leveson by inserting amendments which appear entirely out of context, primarily because that is precisely what they are!
New employment law is creeping in by a similar method. Two recent additions that enhance the rights of whistle-blowers and extend protection to employees dismissed on the ground of political opinion have appeared in the last few weeks
One set of amendments to the Bill have been prompted by the fallout from recent high profile issues within the NHS, and are aimed at strengthening protection for whistle-blowers. They will:
- – introduce a provision whereby the detrimental acts of one co-worker towards a whistle-blower will be treated as being done by the employer, thus making the employer responsible (vicarious liability);
- – add a requirement for protected whistleblowers to be “acting in the public interest”;
- – remove the requirement for disclosures to be made in good faith (while at the same time providing power for tribunals to reduce compensation by up to 25% if they are not made in good faith); and
- – provide a defence for an employer who is able to show that they took all reasonable steps to prevent the detrimental treatment of a co-workers to towards another who blew the whistle.
These changes have resulted primarily from the case of NHS Manchester v Fecitt. Three nurses who raised concerns about the qualifications of a colleague were subjected to victimisation. The Court of Appeal held that the employer could not in such circumstances be vicariously liable for the victimisation to which the whistleblowers were subjected. the changes also provide that employees can be held personally liable for detrimental treatment if it takes place in the course of employment and agents can be liable for detrimental treatment authorised by the employer in its capacity as principal.
Second, following the European Court of Human Rights decision in Redfearn v UK, employees who allege they have been sacked because of their political beliefs will not have to show that they have been employed for two years to claim unfair dismissal.
This sort of reactive tinkering is all very well but does not inspire confidence, or make life any simpler for employers.