Whistleblowing: disclosure in the public interest?

Recent high-profile events have reopened the debate surrounding whistleblowing.

Former CQC boss Cynthia Bower, her former deputy Jill Finney and current CQC media manager Anna Jefferson have been accused of covering up inspection failures at a Cumbrian hospital.

In another high-profile case, a police officer has revealed how he participated in an operation to spy on and attempt to “smear” the family of murdered teenager Stephen Lawrence.

And the international hunt for Edward Snowden, the man who leaked details of government surveillance programs, has raised questions around privacy and civil liberties in the US.

Public interest test

The current UK law on protected disclosures is changing and a further test is being introduced for workers under the Enterprise and Regulatory Reform Act 2013.

They will now have to show that they “reasonably believe” that the disclosure they are making is in the “public interest”.

The government is introducing a public interest test in order to close a legal loophole that allows individuals to lodge a whistleblowing claim at an employment tribunal in relation to matters of purely private rather than public interest.

The protections are designed to protect workers from being unfairly dismissed by their employer or suffering other detriment whenever they report their concerns about matters that affect the public interest to their employer, regulatory authorities or other designated persons.

Under the new rules however, whistleblowing claims will only be valid where an employee blows the whistle in relation to a matter for which the disclosure is genuinely in the public interest.

The good faith test is a test which needs to be satisfied by claimants bringing a whistleblowing claim.

Deterrent effect

With the introduction of the public interest test, it was considered that the existence of two tests would have a deterrent effect and reduce the number of disclosures.

This changes the application of the good faith test, so it will now be considered by the tribunal when deciding on remedy, rather than liability.

The tribunal will have the power to reduce any compensation award by up to 25 per cent where a disclosure has been made predominantly in bad faith.

In the light of evidence from the Mid Staffs inquiry, the principle of liability will be introduced into the whistleblowing provisions.

This means that, where a worker is subjected to a detriment by a co-worker done on the ground that the worker had blown the whistle, and this detriment is done in the course of the co-worker’s employment with the employer, that detriment would be a legal wrong and would be actionable against both the employer and the co-worker.

Employer liability

The employer would only be liable for a detriment where it is done by a worker in the course of employment or by an agent of the employer with the employer’s authority.

Employers who take all reasonable steps to protect workers from the actions of their co-workers will be able to rely on this as a defence and may not be liable. However, the coworkers may still be personably liable.

Jo Swinson, employment relations minister, said: “The measures which come into force today strengthen the protections for individuals that make the difficult, and often brave, decision to report wrongdoing in the workplace.

“We’re open to looking at what else we may be able to do to protect whistleblowers. As we announced during the debates on the Enterprise and Regulatory Reform Act, we will issue a call for evidence to gather data to inform whether any further changes to the law need to be made. “

The Public Concern at Work whistleblowing charity has set up a commission to make recommendations for change which is due to report by the end of the year.

Cathy James, chief executive, said: “Whistleblowing is definitely within the public consciousness but there has to be more holistic consideration of what is good protection, which asks what can regulators, organisations and society as a whole do to tackle indifference and silence in the workplace?

“Amending the law is just the beginning. We have more work to do on whistleblowing, and it is time for a wider debate on this issue.”

Enterprise and Regulatory Reform Act 2013

• The law on protected disclosures is changing and a further test is being introduced for workers under the Enterprise and Regulatory Reform Act 2013
• They will now have to show that they “reasonably believe” that the disclosure they are making is in the “public interest”
• The public interest test will close a legal loophole that allows individuals to lodge a whistleblowing claim at an employment tribunal in relation to matters of purely private rather than public interest
• The Government will extend whistleblowing protection to situations where workers are bullied and harassed by co-workers
• In the same vein as the provisions of the Equality Act 2010, the amendment will introduce personal liability for co-workers who victimise whistleblowers
• Employers can then be held vicariously liable for these employees unless they can show that they took reasonable steps to prevent victimisation

Source: www.pcaw.org.uk