Government amendment to whistleblowing legislation
The Government has introduced amendments to the Enterprise and Regulatory Reform Bill, removing the good faith requirement for a protected disclosure.
Under the Employment Rights Act 1996, it is unlawful for an employer to subject a worker to a detriment on the ground that he or she has made a protected disclosure. Part IVA of the Employment Rights Act 1996 offers protection to individuals only where the disclosure is made in good faith.
The amendment to the Enterprise and Regulatory Reform Bill removes the requirement that the disclosure is made in good faith. Good faith is kept as an issue for the remedy stage, with a 25% reduction in compensation possible where the employment tribunal finds that the disclosure was not made in good faith.
The recent amendments follow the inclusion of a provision in the Enterprise and Regulatory Reform Bill (on the UK Parliament website) amending s.45B of the Employment Rights Act 1996 to clarify that, to be protected against automatically unfair dismissal, whistleblowers must make their disclosure "in the public interest".
Sarah Hogg, Fasken Martineau associate and updating author for XpertHR, said: "The removal of the requirement for protected disclosures to be made in good faith is counterintuitive. The purpose of the statutory regime protecting 'whistleblowers' is to prevent employees suffering a detriment after blowing the whistle regarding wrongdoing or malpractice in organisations. The whistleblower was obliged to act in good faith. The proposed change, however, will serve only to open the floodgates to self-interested and potentially calculated claims and reward those individuals who are seeking to engineer a way around the qualifying period for unfair dismissal or pressure employers into a higher settlement. Under the proposed amendment, even if the tribunal makes a finding that a disclosure was made in bad faith, it can only reduce the compensation award by up to 25%."
- Enterprise and Regulatory Reform Bill The text of the amendment is available on the UK Parliament website.
Policy on whistleblowing Use this model policy to provide a route for any worker to raise qualifying disclosures under the Public Interest Disclosure Act 1998.
Good practice guide on whistleblowing This XpertHR good practice guide provides guidance for employers on introducing effective procedures for reporting concerns about wrongdoing.
The XpertHR FAQs section answers employers' questions on their obligations under the whistleblowing legislation, including:
- What is a public interest disclosure?
- To whom can a worker "blow the whistle"?
- How should an employer prevent employees disclosing to external bodies?