Those of you who are old enough to remember, will recall that the original whistleblowing rules were brought into effect by the Public Interest Disclosure Act 1998 (PIDA) following a series of disasters such as Piper Alpha.
PIDA created two levels of protection for whistleblowers.
- The dismissal of an employee is automatically unfair if the reason, or principal reason, for their dismissal is that they have made a "protected disclosure"
- And an employee will be protected from being subjected to any detriment on the ground that they have made a "protected disclosure"
There is no financial cap on compensation in whistleblowing claims and no requirement for a minimum period of service. For this reason, there was a perception that employees would make tenuous whistleblowing claims in order to boost their negotiating position. For example, an employee could claim that a complaint that their employer had failed to pay a bonus in accordance with their contract of employment amounted to a whistleblowing disclosure, thus avoiding the statutory cap on compensation claims in the event they were dismissed.
Five main changes to the whistleblowing regime came into effect on 25 June 2013
- a disclosure will only now be protected if the worker reasonably believes that it is being made in the ‘public interest’;
- the disclosure no longer has to be made in ‘good faith’;
- if the disclosure is not made in good faith, compensation can be reduced by up to 25%;
- an employer will now be vicariously liable for a detriment caused by another worker (closing a loophole in the law); and
- the definition of worker was amended to make sure it covered all NHS practitioners.
Will the changes make a difference in practice? On the one hand, the requirement of a ‘public interest’ does seem to more closely align the law with its original intention, but this notwithstanding it would still be possible to bring tenuous whistleblowing complaints for self-serving reasons. An employee may reasonably believe that it is in the ‘public interest’, to disclose that an employer is not honouring its obligations to its employees.
eg if a teacher complained that he was not being paid correctly he may have a reasonable belief that making a disclosure is in the public interest because people have an expectation that public sector employers act correctly or because of the demoralising effect it would have on teaching within the schools.
In reality, few whistleblowing claims ever make it to a final hearing at an Employment Tribunal, they settle. Employees will still bring weak claims in order to boost their negotiating position and employers will still settle claims to avoid the cost of litigation or to avoid embarrassing issues making their way into the public domain. It therefore remains to be seen what practical impact the amendments will have.
Sarah Rushton - an employment partner at Moon Beever.
This is intended for general information only and should not be considered as giving advice in relation to any individual case nor be taken as applying to any particular case. No liability is accepted for any such use of the information.