Why it's not easy being a whistleblower
It's 14 years since the whistleblowing legislation was introduced – or to give it the correct name – the Public Interest Disclosure Act came into force in the UK.
It meant employees would be protected if they decided to make a disclosure – blow the whistle – in relation to a criminal offence, breach of a legal obligation, health and safety risk, damage to the environment or deliberate concealment of information about any of these by their bosses.
If a disclosure about any of those matters was made in the right way and in good faith, they became protected disclosures and employees were then protected by the provisions of the Act.
This meant that the dismissal of an employee would be automatically unfair if the reason or principal reason for the dismissal was that they blew the whistle.
If they were sacked or subjected to a detriment e.g. being denied a promotion or a bonus, because they had spoken out, they could take their employer to an employment tribunal and there was no limit to compensation.
Whilst it is still fairly uncommon for these cases to get to the tribunal two cases, one involving the NHS and one HM Prison Service resulted in the claimants being paid sums of £1.2 million and £500,000 in compensation respectively.
However the law changed this year to include a public interest test and to remove the requirement that a disclosure has to be made in good faith in order for it to become protected.
What this means is that it is now more difficult for the employee to blow the whistle as there must now be a genuine public interest element for a disclosure to become a protected disclosure.
The law doesn't define what amounts to be public interest and this will be interpreted when cases come before courts and tribunals.
This is bound to lead to litigation over the meaning but the courts will need to consider whether a disclosure concerns facts or situations affecting other employees or third parties rather than merely the whistleblower's private interests.
The public interest change has been made because of issues arising from the case of Parkins v Sodexho.
In this case, it was decided that there did not need to be any public interest element to a disclosure.
This meant that employees could complain about issues which were personal to them; for example, a breach of their employment contract, and then go onto to claim that they had blown the whistle as they had complained about their employer's breach of a legal obligation.
This may still be possible following the change, provided the disclosure passes the public interest test.
For example, an employee who is discriminated against by their employer may still be granted protection by the act as any disclosure made about that treatment will be capable of amounting to a protected disclosure because preventing discrimination in the workplace is likely to be an issue that the courts will say is in the public interest as well as being in the interests of that individual.
Tighter control was therefore needed while still protecting the employee. The closure of this loophole is very good news for employers.
The new legislation has also removed the requirement for a disclosure to be made in good faith. Employees will however suffer a reduction in compensation should they succeed with a claim where the disclosure was made in bad faith e.g out of personal antagonism towards the employer or to improve the employee's negotiating position.
The change in the law has also meant a change to the definition of worker which means more individuals are now covered by the act; initially it now covers certain types of NHS contractors but may ultimately be extended further.
Again this should be welcomed particularly given the changes globally in the types of employment contracts being offered today.
So what does this mean for an employer? Check your policies to make sure they are relevant and include the reference to public interest and the new definition of worker.
And make sure you keep an eye out for further changes to worker definition.
Out of date policies can mean confusion in the workplace about what an employee should do if they want to blow the whistle and how they should be treated should they choose to do so.