28 June 2013
All change for whistleblowers? Not quite. But you still need to take a deep breath…
In a week where the headlines were dominated by stories about whistleblowers, from the cover-up saga at the Care Quality Commission, to Edward Snowden on the run and hiding out in the transit lounge of a Russian airport, the legal protections for whistleblowers also made the news when the laws changed this week.
Samantha Mangwana explains the key changes:
1. In the public interest?
The subject-matter of what type of disclosure will be protected remains the same. Reporting a criminal offence, breach of a legal obligation, miscarriage of justice, danger to someone’s health and safety, or damage to the environment are all still worthy of protection, but from this Tuesday, a whistleblower must also reasonably believe that it is “in the public interest” to reveal the information.
That sounds great in theory, but what does it actually mean? Unfortunately, there’s no definition in the legislation, nor any guidance from the government. Hopefully this won’t put whistleblowers off coming forward to expose wrongdoing.
2. It’s not the motive that matters
The revised legislation removes the requirement for whistleblowers to be acting “in good faith”. Until now, if they were motivated by personal gain, or vengeance, then the law did not protect them.
Campaigners succeeded in persuading Parliament that this was not the point. The purpose of the legislation was to encourage whistleblowers to speak up so that wrongdoing could be uncovered, whatever their motive was.
A “bad faith” motive can now only be taken into account when the Employment Tribunal consider what compensation it is appropriate to award.
3. Bullying co-workers should watch out
Another key change was to create personal liability for co-workers who inflict reprisals on a whistleblower in retaliation, even if this does not result in the whistleblower leaving employment.
This is important, not only because often the bullies can be other colleagues who are peers or even technically junior than the whistleblower, but also because employers will also now have vicarious liability for their actions. Previously this was a major loophole in the law, since the employer could not be held responsible. It should now operate as a good incentive for employers to shut this type of behaviour down as soon as they can.