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Whistleblowing and the Enterprise & Regulatory Reform Act

On 25 June 2013, a number of provisions of the Enterprise and Regulatory Reform Act come into force, including most of the provisions relating to whistleblowing.

It is important that employers are aware of the changes surrounding the law on whistleblowing, because if an employee is dismissed for making a protected disclosure, the dismissal will be automatically unfair and the usual cap on the value of a compensatory award (currently £74,200) will not apply.

Employment legislation relating to whistleblowing provides protection for workers who make “protected disclosures”. Previously a protected disclosure was any disclosure of facts made in good faith which the whistleblower reasonably believed tended to show that one or more specific types of wrongdoing had occurred.

Under the new legislation a disclosure will only be a protected disclosure if the worker reasonably believes the disclosure is in the “public interest”. Public interest has not been defined, but will normally prevent a disclosure alleging a breach of the employee’s contract of employment attracting whistleblowing protection, where it only affects the individual and not a class of people. Such complaints will now only amount to protected disclosures if the worker reasonable believes that such a disclosure is in the public interest.  It is important to note that the disclosure doesn’t have to be in the public interest it is sufficient that worker reasonably believes the disclosure to be in the public interest.

The requirement that the disclosure be made in good faith has been removed. However, if the tribunal believes that any disclosure was made in bad faith (e.g. motivated primarily by money or malice), then it can reduce the compensatory award by up to 25%.

The new regime has also extended the categories of individual who are deemed to be a worker under the legislation. These changes however, largely concern certain classes of the National Health Service contractors and stem from the recent structural changes within the NHS.

Further provisions within the Act (which will come into force later in the year), introduces vicarious liability for the employer where a worker who has made a protected disclosure is subjected to a detriment by a co-worker or agent of the employer. A defence is available to the employer where it can show it took all reasonable steps to prevent the detriment. 

For advice on whistleblowing, whether you are an employer or an employee, contact John Merry at Lanyon Bowdler at john.merry@lblaw.co.uk or on 01952 211 010.