Government Amends ‘Whistleblowing’ Legislation

Under Section 47B of the Employment Rights Act 1996, a worker has the right not to be subjected to unwanted treatment amounting to a detriment by their employer because the worker has made a protected disclosure under the Public Interest Disclosure Act 1998 (often called the Whistleblowing Act).

On the issue of vicarious liability in whistleblowing cases, there is currently no provision in Section 47B making it unlawful for other workers to victimise whistleblowers. This is set to change as the Government is to amend the Enterprise and Regulatory Reform Bill in order to give individuals who blow the whistle against their employer protection from bullying and harassment by their co-workers. An employer’s defence against liability will be that they took all reasonable steps to prevent the detrimental treatment.

In addition, there is currently a requirement that for a worker to be able to rely on legal protection against dismissal for making a disclosure, they must be acting in good faith. This requirement is also to be removed. In its place, an Employment Tribunal (ET) will have the power to reduce the compensation award by 25 per cent if it finds that a disclosure was not made in good faith.

The changes, which came into force on 6 April 2013, mean that where the making of a protected disclosure results in a deterioration in relationships in the workplace, the employer must not only take care that any action it takes to resolve the situation does not constitute detrimental treatment of the whistleblower but also do all it can to protect that individual from bullying and harassment by other members of staff.

In a further development on this topic, the Employment Appeal Tribunal recently overturned the ET’s decision and ruled that the protection from detrimental treatment by their employer afforded to employees in whistleblowing cases does extend to disclosures made after their employment has ended (Onyango v Berkeley Solicitors).

Contact Gary Lee for advice on any employment law matter.