Whistleblowing Changes from 25th June 2013

The Enterprise and Regulatory Reform Act 2013 heralds the introduction of a number of changes to whistleblowing legislation.

From 25 June 2013, the following changes will come into force:

Public Interest Requirement
A disclosure will only qualify for protection if the worker who makes it reasonably believes that the disclosure is made in the public interest. It is important to note it is sufficient for the worker to reasonably believe that the disclosure is in the public interest.

Removal of Good Faith Requirement
The requirement that a disclosure has to be made in good faith in order to attract whistleblowing protection has been removed. This change means that a worker’s motives for making a disclosure is now irrelevant. However, where a disclosure is found to be made in bad faith, the Employment Tribunal will be able to reduce any award they make to a whistle-blower by up to 25%, if they consider it just and equitable to do so.

In the summer of 2013, the following change will be implemented:

Employer’s Vicarious Liability
Employees will now be personally liable if they victimise a colleague because they have made a protected disclosure. Employers will also be made vicariously liable under whistleblowing legislation where an employee victimises a whistle-blower colleague, unless the employer can show that they have taken all reasonable steps to prevent victimisation occurring.

Impact?
To avoid being found vicariously liable for an employee’s act of victimisation, employers should demonstrate that they have taken all reasonable steps to prevent victimisation. This can be done by having an up-to-date whistleblowing policy which states that it is unacceptable to victimise a whistle-blower and warn that anyone who does victimise a whistle-blower will face disciplinary action.

In light of these changes, a thorough whistleblowing policy is crucial so as to ensure that employers are best protected from an uncapped claim for unfair dismissal. Further, managers and supervisors will need to know how to handle situations where a worker has made a protected disclosure in an appropriate manner