Blowing the Whistle on Whistleblowing

Thursday 4 July 2013

The Extremes of Whistleblowing

Googling ‘Edward Snowden’ will reveal that the news pages are littered with stories and updates on the world’s most controversial whistleblower.  This whole affair has brought about significant debate regarding civil liberties in the US

Recent UK Changes

It must be purely coincidental that changes have just been introduced which could potentially encourage further public interest disclosures in the UK. Again there is obviously debate surrounding the likely effects and some believe these will be limited.

UK whistleblowing legislation was introduced by the Public Interest Disclosure Act 1998, following financial turmoil in the preceding two decades.
Since 25 June 2013, workers must now ‘reasonably believe’ that their disclosures are made in the public interest, before they receive protection from dismissal or detriment caused by their disclosure. ‘In the public interest’ has not been defined. Individual Employment Tribunals will be left to decide the precise meaning.

The Malicious Whistleblower Still Protected?

The whistleblower’s belief need not be correct for them to benefit from the protection, which is quite significant. The previous requirement for disclosures to be made ‘in good faith’ has also been removed.

Indeed even if whistleblowers are malicious, intent on receiving a personal benefit or both, in addition to being incorrect, so long as they ‘reasonably believe’ the information to be true and in the publics’ interest, they will benefit from protection. However, Tribunals are now able to reduce compensation by up to 25% when bad faith is proven.

Many employers’ whistleblowing policies will say that disclosures made in bad faith will not be protected. This wording is now technically out of date and employers may wish to revisit this with care.

Personal liability and vicarious liability of employers for the actions of their staff has been introduced for whistleblowing detriments. Employers can avoid vicarious liability by taking ‘all reasonable steps’ to prevent their employees subjecting others to unlawful detriment. Therefore an up to date whistle policy becomes all the more important.

Initial Thoughts

We at Blacks reserve judgment upon the likely effects of this new legislation. All depends on the Tribunal’s interpretation. However, on the face of it, there is potential for major change in favour of the not so commendable whistleblower.