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Whistleblowing developments
Trowers Public Insight

Whistleblowing developments

Whistleblowing is never far from the news and, as of 25 June 2013, the Enterprise and Regulatory Reform Act 2013 (the Act) introduces various changes.

The statutory regime protecting whistleblowers under the Public Interest Disclosure Act 1998 (PIDA) does not currently include any requirement that a "protected disclosure" be made in the "public interest".  This is set to change and a new "public interest test" will be introduced.  The intention is to close the loophole which currently enables workers to blow the whistle about matters of purely private, rather than public, interest.  However the "public interest" is not defined and this is likely to result in future litigation.

It is likely to be relatively easy for employees (especially those employed or working in the public sector) to show that complaints about their own employment are in the public interest.  For instance an employee bringing a race discrimination claim could claim the protection on the basis that it is in the public interest to combat discrimination, and that his or her disclosure is of benefit to others within the workplace.

It remains to be seen whether the employment tribunals will adopt a broad or a narrow interpretation of "public interest".  There's every possibility that employees of public sector bodies, including local authorities, will be able to argue that the disclosure about their employment and/or matters connected to use public funds by their employer will amount to a disclosure in the public interest.  It's worth noting that there is no requirement that the disclosure is actually in the public interest; all that is required is that the worker "reasonably believes" that it is.

Currently a worker making a protected disclosure has to make the disclosure in "good faith".  This requirement is going to be removed.  Instead, the tribunal will have the power to reduce compensation by up to 25% where the disclosure is not made in good faith.

The definition of "worker" is going to be broadened to include all NHS workers.  There is also a power for the Secretary of State to amend the definition of "worker" further.  When the Act was still a Bill, during the parliamentary debate, it was proposed that job applicants could be brought within the protection of whistleblowing legislation.  Although this was not pursued, it is something to look out for in the future.

Finally, whistleblowers will now also be protected from bullying and harassment by co-workers and employers will be vicariously liable unless they take all reasonable steps to prevent it.  This will include ensuring that managers and employees are trained on the proper use of whistleblowing policies and the protection enjoyed by whistleblowers.

All these changes highlight the need for local authorities to review their whistleblowing policies and to ensure that all staff and managers are given training on the new legislation.