New public interest requirement for whistleblowing from June 2013

06 October 2013
New public interest requirement for whistleblowing from June 2013

From 25 June 2013, the new public interest requirement is introduced to whistleblowing legislation by the Enterprise and Regulatory Reform Act.

Under the new law, an employee "blowing the whistle" on an employer's wrongdoing makes a protected disclosure where the employee reasonably believes the disclosure is being made in the public interest. It is no longer required that the disclosure is made in good faith.

Disclosures motivated primarily by money or spite will be protected by the new legislation. However a tribunal has the right to reduce the compensation awarded by up to 25% if it believes the disclosure was made in bad faith.

What is "in the public interest" is not defined by the law, but is most likely to affect a group of people and not just an individual.

If the primary reason for an employer dismissing an employee is a protected disclosure or 'whistleblowing', the normal two year qualifying period for unfair dismissal and the cap on the compensatory awards do not apply.

In addition, employers are now vicariously liable and employees personally liable where a whistleblower is victimised or subjected to a detriment by another worker or an agent of the employer, on grounds that the whistleblower made a protected disclosure. The employer will have a defence for victimisation, if it can show it took all reasonable steps to prevent the worker or agent from subjecting the individual to the detriment.

In response to the new law, employers may need to:

  • Update their whistleblowing policy to clarify that disclosures are protected where the employee believes these are made in the public interest, whether or not these are made in good faith
  • Signpost individuals wishing to whistleblow on their personal terms and conditions to the organisation's grievance policy
  • Make explicit in the organisation's policy that a zero tolerance policy to the victimisation of whistleblowers is adopted
  • Spell out the serious implications for staff and agents who victimise staff who whistleblow. This includes in the treatment of whistleblowers after their employment has ended, for example with references
  • Train staff on the updated law/policy and the subtle change in its implications for staff and agents.

For further information on whistleblowing and protected disclosures, see the whistleblowing section of HRBird.

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