As a result of the Enterprise and Regulatory Reform Bill changes will be made in Summer 2013 to the whistle blowing provisions. These changes include:
limiting the scope of the provisions. Individuals will not be able to bring “a whistle blowing case which relates to matters such as personal contractual breach that are not in the public interest” (closing off a claim currently available to employees under the existing legislation). The focus is very much on disclosures being protected where they are made in the “public interest”;
removing the need for disclosures to be made in ‘good faith’ (but reducing any compensatory award by 25% for disclosures deemed to be made in ‘bad faith’);
individual employees and agents can be personally liable for any detriment suffered by a whistleblower; and
employers will be liable for acts of employees and agents unless it can show it took all reasonable steps to prevent such treatment.
Whistle blowing claims based around a breach of an individual’s contract have been relatively common. The shift in focus to ‘public interest’ disclosures will make it harder for many of these claims to succeed. However, we expect such claims will still be brought. Some will bring claims only as a means to increase their negotiation leverage in settlement discussions. Others will bring more principled claims, perhaps arguing that disclosing contractual breaches can still be in the public interest. We will have to wait for case law to determine what is in ‘the public interest’ (e.g. arguably raising a concern about discriminatory treatment is in the public interest) and what is regarded as ‘bad faith’.
In the meantime, employers should review existing whistle blowing policies and training arrangements (much like they should for equal opportunities policies). Ensuring policies are fit for purpose and providing appropriate training will enhance the prospects of employers successfully running a ‘reasonable steps’ defence.
For further information, help or advice please contact our Employment Team on 0191 211 7777 or email [email protected]