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Whistleblowing: Lawyers call for further reform

About The Author

Georgia Mitchell (Writer)

Georgia is in her second year of Law at Newcastle University. She is currently pursuing a career as a commercial solicitor, and hopes to work abroad within the EU at some point in her future career. Outside of her studies, Georgia is an avid tennis fan.

The term ‘whistleblowing’ is officially defined as “making a disclosure that is in the public interest”. Employees are protected under the Public Interest Disclosure Act 1998 in the UK if they choose to disclose to a public body that their employer is participating in unlawful conduct.

After the importance and effectiveness of whistleblowing being highlighted by recent high profile cases, various reforms were implemented in June of this year, following a consultation published by the Whistleblowing Commission on 27 March.

The Enterprise and Regulatory Reform Act 2013 (ERRA) has amended the law on whistleblowing. The law on protected disclosures has been changed and another test has been introduced for workers under ERRA 2013. The test has established that workers must show that they “reasonably believe” that the disclosure they are making is in the “public interest”. Considering that the aforementioned high profile cases have elucidated the demand for whistleblowing protection, the additional layer of complexity provided by this new public interest test seems superfluous. It has been argued that the higher level could deter those that would otherwise have decided to make a protected disclosure.

Does this test undermine the government’s original aim to encourage whistleblowers in disclosing information within their place of employment?

Arguably, yes it does.

However, the opposing argument has been used to justify its introduction. The broadening of the definition by the tribunals of what constitutes a ‘qualifying disclosure’ has enabled opportunistic employees to make protected disclosures regarding solely private matters, such as issues regarding their individual employment contracts. This was not considered to be within the aim of the original legislation and further explains why these reforms have been established.

Nevertheless, although the ‘public interest’ test is viewed as a potential obstacle for whistleblowing claims, there have been further amendments to rectify this imbalance. The government has closed what it considered to be a loophole created by the Parkins v Sodexho case in 2002, whereby whistleblowers who disclosed information (in good faith) about breaches of their own employment contract were protected by the whistleblowing legislation.  The case opened the door to the use of tactical disclosures by employees where, for example, they had insufficient service to bring an unfair dismissal claim. The previous requirement of making a protected disclosure in “good faith” has been removed. Although good faith will remain significant, it will only be relevant if the employee wins at tribunal, where compensation granted can be reduced by 25%.

Without legal aid available, the requirement for whistleblowers to go to tribunal could be criticised for being too inaccessible for the common man, with tribunals having the potential to be very costly. Some have adopted the opinion that this piece of legislation is a deliberate decision by the government to ensure employers consistently have the upper hand in whistleblowing cases, undermining the rights of employees’ altogether. On the other hand, the requirement has the aim to increase the level of protection for employees as employers can no longer argue that a whistleblower’s claim should fail merely because it was made in “bad faith”.

An additional key reform which was executed in June introduced liability for employers for the harassment or victimisation of employee whistleblowers by their colleagues. It is now established that if a fellow employee in any way ‘victimises’ a whistleblower, they may be held personally accountable. This amendment operates as a form of protection for employers. Previously, employers could be held liable for any type of harassment or victimisation of a whistleblower by another employee, even if they had taken reasonable steps to prevent such conduct from occurring. The reform states that this is no longer possible. If an employer attempts to prevent such detrimental behaviour from the fellow employee, they will be excused of all accountability.

Generally, these reforms are seen as a positive improvement in the workplace. They have aim of ensuring that every member of staff feels confident to ‘speak up’ if any concerns arise and to also ensure appropriate action will follow if any breach of policy was to occur. The amendments and CIPD also advise regular communication of the channels employees should utilise if they have concerns about malpractice in their work place. This information must be comprehensive in order to optimise the rights of whistleblowers.

Despite all of these reforms, simplification in the law of whistleblowing is still desired by many, primarily by lawyers. The Employment Lawyers Association (ELA) has called for further changes, believing that the statutory conditions attached to making ‘protected disclosures’ will deter whistleblowers from making disclosures in their place of employment. A commission to review the operation of the current law is due to occur in November 2014.

ELA identified an array of difficulties for whistleblowers which have arisen from the reforms. Under the current rules, an employee must have ‘reasonable belief’ that the employer’s conduct falls within 1 of 6 listed categories of misconduct which may be too complex for some, and discourage them from exposing wrong doing. The government has said it is too early to review the additional statutory condition introduced by the Enterprise and Regulatory Reform Act 2013 (section 17) that all such disclosures must also be ‘in the public interest’. The term ‘public interest’ still necessitates clarification. The obligation to make all disclosures in the ‘public interest’ is enveloped with controversy, with some believing it is an insignificant statutory condition and others believing it should become the most important requirement for employees to satisfy. Therefore, the government have delayed the review of this condition.

Although the government has stated that the reforms will give confidence to whistleblowers to report misconduct more frequently, the association believes some type of financial incentive should be introduced to further encourage employees. ELA believes the current statutory prohibition on financial incentives should be repealed and that this should be considered as part of the overall ‘reasonableness’ of the disclosure.

Overall, despite the recent reforms undeniably improving the area of whistleblowing, ELA highlights the fact that the law is far from ideal. It is evident that whistleblowers need further protection and encouragement from the government when reporting any wrong doings in the workplace. If this is acted upon, misconduct would inevitably decrease. Legislative protections are important, but not enough in ending the culture of silence which continues to exist in places of work due to employees being worried about the consequences they may face from their employers after disclosing any detrimental information they may possess.

Further Reading

Philip Landau, The Guardian, Whistleblowing: is new ‘public interest’ test a good thing?

Weightmans, Changes to the law on whistleblowing

Anthony Korn, No5 Chambers, Lawyers want whistleblowing rules simplified

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Tagged: Commercial Law, Employment Law

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