Protection for employees who “Blow the Whistle”: changes for 2013
Following a number of scandals in the 1980’s and 1990’s such as the Maxwell scandal and the Piper Alpha explosion, it was decided that protection was needed for those workers who previously were too scared to ‘blow the whistle’ on the wrongdoings of their employers.
This led to the Public Interest Disclosure Act 1998 (PIDA). This gives workers protection from being dismissed for making what is referred to as a ‘protected disclosure’. They are also protected from being subjected to a detriment i.e. being treated unfavourably because they have made a protected disclosure. If an employee makes such a claim in the Employment Tribunal it is known as a ‘whistle blowing claim’.
There are a number of hurdles a worker must overcome to secure this protection and one more has been added as of 25 June 2013 by the Enterprise Regulatory Reform Act 2013 (ERRA). This is the requirement that the disclosure must be ‘in the public interest’. This is not currently required and so an employee could argue that a breach of a legal obligation (a possible qualifying disclosure under PIDA) could be a breach of their own contract of employment. It was deemed by Parliament that this was not what was intended by PIDA, hence the new requirement that the disclosure is in the public interest. How Tribunal’s interpret ‘in the public interest’ remains to be seen. It’s worth noting that a protected disclosure could still be a breach of the employee’s contract of employment if it is in ‘the public interest’.
Other amendments to the ‘whistle blowing’ legislation are:
- The disclosure must no longer be made in ‘good faith’ but if the Tribunal believes it was made in bad faith, compensation can be reduced by 25%
- Employers can be liable for acts by its employee where that employee subjects a fellow employee (A) to a detriment because A blew the whistle. This is known as vicarious liability and it is due to come into force in summer 2013, later than the above changes.
‘Whistle blowing’ claims by employees against their employers are not the most common type of claim. However, since employees now need two years’ service to bring a claim for unfair dismissal (if employed after 6th April 2012) some employee’s may try to circumvent this barrier by introducing whistleblowing claims as there is no service requirement in order to bring such a claim. Further, there is no cap on compensation for whistleblowing claims.
The ERRA 2013 brings in a whole host of other changes to employment legislation, including changes to the Agricultural Wages Board.
If you have any concerns about employment issues in your workplace or you are an employee concerned with how you are being treated, please feel free to give us a call so we can have an initial chat to see how we can help you. You can contact Linda Wilson or Simon Arneaud in the Petersfield office on 01730 268 211.