Dear Editor,

On 25th June 2013 the law changed regarding whistleblowing.

The main change to the law is that any disclosure must, in the reasonable belief of the worker, be in the public interest. There is likely to be some litigation and uncertainty around what is deemed to be ‘public interest’; however health and safety matters such as protective equipment not being made available by an employer may well qualify.

One of the more surprising elements is the removal of a good faith requirement. Previously, employees had to blow the whistle in good faith - the motivation should be to ‘put something right’. This new change is therefore unexpected. However if an employee's claim is motivated by malice, the Employment Tribunal will have the power to reduce any award by up to 25%.

A consideration for businesses following the new law is that employers will have vicarious liability where employees have suffered a detriment as a result of blowing the whistle. This means that employers will potentially be responsible for such action, although there may be a statutory defence where an employer can show they have taken all reasonable steps to prevent this from happening.
It’s therefore advisable that businesses have a whistleblowing policy in place with procedure for employees to follow, to assist employers in dealing with and keeping track of such disclosures. In addition, such a policy may strengthen an employer's argument that they have taken all reasonable steps to prevent employees subjecting others to an unlawful detriment.

Previously, a company may have considered disciplinary action against an employee who has blown the whistle that is not in good faith, but as the legislation has changed, care should be exercised before starting such action.

The new law is likely to reduce the number of employment tribunal claims by whistleblowers by closing a previous loophole which allowed claims to proceed which had no public interest element.

Yours sincerely,

Sarah Empson
Associate, Employment
B P Collins LLP

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