Late June saw the introduction of some significant changes to the whistleblowing provisions set out in the Public Interest Disclosure Act. However, before considering the changes I think that it is worthwhile taking a little time to consider just what whistleblowing is in the context of UK employment law. In its simplest sense whistleblowing is “blowing the whistle” or bringing out into the open wrongdoing by an employer. Prior to the implementation of the Public Interest Disclosure Act 1998 (in July 1999) whistleblowers had no protection from dismissal. Further, they could be subject to claims for damages for breach of confidence (on the basis that the whistleblowing entailed the disclosure of confidential information obtained in the course of employment), although it was possible to raise a public interest defence in limited circumstances.
The Act came into force against a background of financial scandal and “sleaze” and is aimed at ensuring that employees can disclose certain types of information, such as financial wrongdoing, crime, or health and safety matters, without suffering a detriment. Examples could include a danger in the workplace, financial misreporting, or medical negligence in a hospital. The concern raised must be “genuine” and based on “reasonable grounds”. Breach of the Act by employers can result in employment tribunals proceedings and awards of compensation. Dismissal for whistleblowing is treated as automatically unfair.
Many employers responded to the new law by implementing “whistleblowing policies” confirming their commitment to the avoidance of detriment and providing express protection for whistleblowers. Such protection can only be effective if employees know what whistleblowing is (e.g. it is not raising general grievances) so policies tend to explain this as well as spcifying a method for reporting wrongdoing confidentially and confirming that it will be a disciplinary offence to victimise a whistleblower or to make a false allegation maliciously. Our Employment Solutions standard documents (available to subscribers) include a tried and tested whistleblowing policy along with detailed guidance notes. Other employers have sought to “gag” employees by requiring them to sign confidentiality clauses, generally accompanied with substantial payments on the termination of employment.
Whistleblowing has been much in the news in recent months, what with Edward Snowden and the NSA, the conviction of Bradley Manning, revelations about police undercover operations and attempts to smear the Lawrence family. Gagging orders included in settlements are reported to have cost the NHS £2 million and the BBC a staggering £28 million.
So, what are the changes?
- – Disclosures are now only protected if the whistleblower reasonably believes the disclosure to be in the public interest;
- – On the other hand there is no longer any requirement that the disclosure must be made in good faith – so long as the public interest requirement is satisfied, an employee could be motivated by malice. However, in that case tribunals could cut compensation by up to 25%;
- – A gap in the law allowing employers to escape liability for victimisation of whistleblowers by co-workers has been closed, and those co-workers will also be personally liable for bullying and victimisation. From the wording of the provisions, it seems that there will be scope for liability to be apportioned between employer and employee, depending on where the main fault lies;
- – The definition of worker is extended to include certain contractors – specifically so that contractors in the NHS will be covered. No doubt this is connected with recent stories emanating from the NHS in particular.
Earlier proposals to exclude disclosures relating to individual employment contracts have not been pursued, on the basis there may still be a public interest in such disclosures.
A potentially fertile area for litigation is immediately apparent since there is no formal legal definition of “public interest”. No doubt this will be one of the first areas of the new regime to be tested.