Last month, Julie Morris wrote about the reduction in the Redundancy consultation period that the government is proposing. To view this blog please click here. Unfortunately, that is only one of a raft of measures eroding employees' rights that the government plans to introduce in 2013.
Following a series of financial and health and safety scandals in the 1980s and 1990s, the government decided to introduce legislation to afford additional protection to employees who complain about unlawful conduct on the part of their employers. These "whistle-blowers" get additional protection against Dismissal. The rationale was that employees should be encouraged to raise concerns, thereby making it more difficult for businesses to get away with unlawful behaviour for years on end.
Of course, nowadays such scandals are a thing of the past and all businesses always abide by their legal obligations… don't they?
Except, as anyone who has read a newspaper in the last few years will know, they don't. There have been plenty of similar scandals in recent years, so it is shocking that the government thinks that it is right to reduce protection for whistle-blowers.
The government says it is merely closing a loophole. It argues that the legislation was never meant to extend "whistle-blower" protection to those who were complaining about a purely private breach of their own Employment Contract. An employer may be breaking the law, for example by not complying with its obligations regarding an employee's pay or conditions. Under the new rules, it will not be enough for an employee to establish unlawful behaviour. With effect from April 2013, the legislation will be amended to add an additional hurdle for an employee who wants to raise a complaint. They will have to show that they believe that it is "in the public interest" to complain about the unlawful act. The problem is that, at this stage, we simply do not know how this test is going to be interpreted.
One could argue that it is in the public interest that employers should, as a matter of principle, abide by all their legal obligations to their employees. However, since this interpretation would render the government's amendment pointless, it seems unlikely that this argument will find favour. One can imagine that the tribunals would hold a banker's complaint that they had not been paid their Bonus not to be in the public interest. But what about a nurse complaining that they had not been properly paid for overtime? What if the overtime issue affected other employees? What if it meant that nurses were less likely to agree to work overtime, thereby causing staff shortages? A lone employee may well only know about their own situation and not have all the facts to assess the wider picture. Therefore it is manifestly unfair to expect the employee to be a position to judge whether or not their complaint is a matter of public interest. Employees could be reluctant to raise complaints about what appear to be small-scale concerns, which could mean that illegal behaviour is not nipped in the bud.
At this stage, even Employment Lawyers can only guess at what will and what will not be in the public interest. We will have to wait for brave individuals to argue the point before the employment tribunals, so that we have some guidance from the judges as to what sort of complaints will pass the "public interest" test. In the meantime, employees will be left in limbo, not knowing whether or not they will be protected if they speak out. The clear risk is that this could stifle employees with genuine concerns; stopping unlawful conduct from being brought to light and taking us back to the bad old days before we had Whistleblowing protection.