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Whistleblowing; Protected Disclosures and the Public Interest

28 June 2013: Since 1998 it has been unlawful to subject someone to a detriment or dismiss them as a result of having made a Protected Disclosure, also known as whistle-blowing).

 

Making a Protected Disclosure includes telling the employer that that that they have failed to comply with a legal obligation, that there has been a miscarriage of justice, or that health and safety or the environment have been put at risk.

 

An employee dismissed for whistle-blowing can bring an unfair dismissal claim regardless of length of service, and awards are uncapped. Consequently employees can be quite imaginative in what they claim amounts to a Protected Disclosure.  Until this week a disclosure of an employer’s failure to comply with a contractual obligation qualified even if the matter was of private rather than public concern. For example a worker may have claimed that their grievance about not being given a proper rest break under the Working Time Regulations 1998 amounted to a Protected Disclosure.

 

From the 25th June 2013 the worker must now reasonably believe that the disclosure is in the Public Interest. However, rather unhelpfully, ‘public interest’ is not defined, though it is generally understood to concern the welfare or well-being of the general public.

 

Expect imaginative employees to argue therefore that a) employees in my company are members of the general public b) my complaint about bullying / working time etc is of concern to my colleagues, therefore c) my personal grievance is made in the public interest. Workers in the public sector or large companies with a high public profile may end up with more protection than workers in small businesses.

 

It used to be the case that Protected Disclosures had to be made in good faith and that the whistle-blowers had to reasonably believe that their allegations were substantially true. Bizarrely, that is no longer necessary. However Tribunals can now reduce awards by up to 25% if disclosures are not made in good faith. This would still appear to be a licence for workers to make fairly outlandish claims and only suffer a 25% penalty as a result.

 

No doubt we will see plenty of arguments  on this in the EAT in due course.

 

See the Enterprise and Regulatory Reform Act 2013 and the Employment Rights Act 1996. To discuss your problem, call one of our team today

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