When to blow your whistle...

The Enterprise and Regulatory Reform Act 2013 makes significant amendments to the legislation on whistleblowing.

Position prior to 25 June 2013

As the law previously stood, whistleblowers were protected if they were dismissed for making a qualifying disclosure in good faith. An employee qualified for protection if, in their reasonable belief, one of the following had occurred:

  • a criminal offence;

  • a breach of any legal obligation;

  • a miscarriage of justice;

  • danger to the health and safety of any individual;

  • damage to the environment; or

  • the deliberate concealing of information about any of the above.

If it was established that a protected disclosure had been made, then the usual qualifying period of employment for unfair dismissal claims did not apply and the statutory cap on unfair dismissal compensation fell away.  This legislation, therefore, provides important protection for those who have made a protected disclosure.

Update

The Enterprise and Regulatory Reform Act 2013 amended the current legislation on 25 June 2013.  From this date, a disclosure only qualifies if it is made for one of the above listed reasons and is believed, in the eyes of the employee, to be in the public interest.  The previous requirement for the disclosure to be made in good faith (in order to qualify as a protected disclosure) has been removed.  However, good faith is still relevant to compensation, as the Tribunal is able to reduce any award it makes to the employee by up to 25% if the disclosure is made in bad faith.  This will apply where a whistleblower has been successful in a claim for unfair dismissal or detriment based on a protected disclosure.

Further amendments to the whistleblowing legislation will come into force later on in the year as a result of the Enterprise and Regulatory Reform Act 2013.  In the summer, employers will become vicariously liable for detriment caused to a whistleblower by another worker.

Our view:

Now would be a sensible time for employers to update their whistleblowing policy to take into account the changes which came into force on 25 June 2013.  If you do not have a policy, you should consider putting one in place. Having a whistleblowing policy helps to prevent problems escalating and allows employers to address problems whilst they are at a manageable stage; saving time and money in the long run.