Changes have come into effect today (25 June 2013) to the legislation governing whistleblowing by the Enterprise and Regulatory Reform Act 2013 (the ERRA).
Whistleblowing occurs when a worker makes a qualifying disclosure to an employer (or to a regulator, legal adviser, minister or other responsible or prescribed person) about a dangerous or illegal activity or omission. Subject to fulfilling certain criteria as set down by legislation, this will be considered a ‘protected disclosure’ under the Employment Rights Act 1996. The effect of which is that the worker is then protected from being dismissed or subjected to any detriment as a result of the disclosure.
The key changes introduced to the whistleblowing legislation today are:
Public Interest Test and the requirement of Good Faith
From today the ERRA amends the Employment Rights Act 1996 so that a disclosure will only be a ‘qualifying disclosure’ if the worker making the disclosure reasonably believes that the disclosure is ‘in the public interest’.
In addition, the requirement that the worker has to show that the disclosure was made in ‘good faith’ has been removed.
It has been suggested that the removal of the requirement of the disclosure being in ‘good faith’ has been made to counterbalance the introduction of the public interest test, which is viewed by some as an additional barrier standing in the way of employees wanting to speak out against their employer.
Good Faith and Compensation
The concept of ‘good faith’ has not disappeared entirely from the whistleblowing legislation. The ERRA provides that where it appears to a Tribunal that a protected disclosure was not made in good faith, the Tribunal may reduce any award made to the complainant by up to 25%.
The Court of Appeal has held previously that an employer cannot be held vicariously liable for the actions of its employees under the whistleblowing legislation where an employee is victimised by a colleague for whistleblowing. However the ERRA has now introduced personal liability for employees who victimise whistleblower colleagues as well as vicarious liability for their employers.
Definition of Worker
Finally, the ERRA has extended the definition of ‘Worker’ for the purposes of whistleblowing to include certain categories of NHS contractors. This is considered to be in response to NHS structural changes.
In addition the Secretary of State has been given power to add further categories to the definition and the government has also stated that it will consider extending the definition to cover job applicants. However, it has first proposed a call for evidence to discover the extent of any problems faced by job applicants in relation to whistleblowing.
If you would like further information about the changes discussed above or any other changes brought about by the ERRA, please click here to contact the Devonshires Employment Team.