Business Law: It’s all change on ‘whistleblowing’, says Andrew West

Andrew West, Gotelee Solicitors

Andrew West, Gotelee Solicitors - Credit: Archant

THE legal protections available to “whistle-blowers” are to be changed later this year, covering situations where employees draw attention to malpractice within a business, including criminal offences, health and safety dangers and breaches of legal obligations.

The Enterprise and Regulatory Reform Bill will amend the law so that individuals who blow the whistle on their employer will be protected from bullying or harassment by their fellow workers.

The employer will be automatically responsible for any detrimental treatment of a whistle-blower by their co-workers, unless the employer can show that it took all reasonable steps to prevent that detrimental treatment from occurring. Currently, the law only protects a worker from harassment or bullying by their employer.

As the law stands at present, a worker must be acting in “good faith” to be able to rely on legal protection against dismissal for blowing the whistle. This requirement is to be removed and, in its place, an Employment Tribunal will have the power to reduce the compensation award by up to 25% if it finds that a disclosure was not made in good faith.

So far these changes are all pro-employee. However, the proposed closure of a loophole in the whistleblowing legislation will be pro-employer.

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Previously an employee could claim whistleblowing protection if they complained, in good faith, about a breach of a term in their own contract of employment. One contractual term is that an employer must not act in a way to damage trust and confidence.

The loophole potentially allowed an employee who resigned, having complained of a breach of trust and confidence, to make a claim of constructive unfair dismissal, regardless of their length of service (when in other situations, the employee would need two years service to make such a claim).

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The Government will deal with this by making it a requirement that any whistle blow has to be in the public interest, with the result that personal grievances relating to an individual’s contractual terms are highly unlikely to qualify for whistle blowing protection.

It is important for businesses to recognise when workers and employees have potentially blown the whistle. With the potential for uncapped compensation, it is more vital than ever to ensure that the investigation is thorough and transparent.

It is also essential that staff are trained on whistle-blowing in the workplace – a failure to do so could make it difficult for your business to then show that you have taken steps to prevent detrimental treatment from occurring.

: : Andrew West is employment law partner at Gotelee Solicitors.

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