New whistleblowing provisions to come into force next month

Many of those in organisations receiving employment law advice from Employee Management Ltd (http://www.employeemanagement.co.uk) will be awaiting news of the commencement dates relating to the Enterprise and Regulatory Reform Act 2013. One such important date is 25^th June 2013, which is when most of the provisions concerning whistleblowing come into force – particularly sections 17, 18 and 20.

The importance of these provisions can be attributed to the fact that in the event of a worker being dismissed for the principal reason of making a protected disclosure, then there is a circumvention of the normal two year qualifying period and cap on the compensatory award. The changes mean that only those who make disclosures which, in “the reasonable belief of the worker making the disclosure, is made in the public interest" will receive whistleblowing protection. This amounts to an effective reversal of the Parkins vs Sodexho ruling, and will normally rule out whistleblowing protection for disclosures that allege breaches in employees’ employment contracts.

Although there is no definition of ‘public interest’, it probably refers to something that, rather than affecting a single individual, has an impact on a class of people. It’s important to note that there’s no need for the disclosure to actually be in the public interest. It is merely necessary for the worker to reasonably believe that it is in the public interest, which is a vital, albeit subtle difference.

Another effect of the new provisions is that whistleblowing protection is extended to those who make disclosures in bad faith – in other words, with money or spite being the primary motivation rather than a desire to correct something wrong. However, those companies that may turn to Employee Management Ltd for employment tribunal representation will be interested to read that if the disclosure is thought by the tribunal to have been made in bad faith, then it will be able to reduce compensation by as much as 25%.

Finally, the changes coming into force in late June tweak the definition of ‘worker’, albeit solely for whistleblowing purposes.

One part of the Enterprise and Regulatory Reform Act 2013 that does not come into force on this late June date is section 19. This change involves vicarious liability being imposed on an employer for detriments, on grounds that a protected disclosure was made by a worker, by other workers on that first worker. This amounts to a reversal of a loophole in the whistleblowing legislation’s initial draft, and ensures that vicarious liability for whistleblowing is in line with the position under the Equality Act 2010.

Employers who are unsure of the effects on them of any of the changes to employment legislation brought in by the Enterprise and Regulatory Reform Act 2013 are encouraged to get in touch with Employee Management Ltd (http://www.employeemanagement.co.uk) to receive the most up-to-date HR advice.

Editor’s Note: Employee Management Ltd (http://www.employeemanagement.co.uk) are represented by the search engine advertising and digital marketing specialists Jumping Spider Media. Email: info@jumpingspidermedia.co.uk or call: +44 (0)20 3070 1959 / +34 952 783 637.