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Changes to whistleblowing law

Whistleblowing fell back into the spotlight earlier this year as a result of a number of high profile cases which were picked up by the media, including the case of Gary Walker who said he was paid £500,000 on leaving the NHS not to disclose his concerns over patient safety at the hospital trust he was employed as the Head of until 2010.

A number of flaws were uncovered in the legal provisions on whistleblowing which the changes implemented on 25 June 2013 aim to rectify.

Public interest requirement

Prior to 25 June a worker had to show they had a reasonable belief that one of a number of things had occurred to ensure that their disclosure was a qualifying one. If they could show that a criminal offence had been committed or there was a breach of a legal obligation or a danger to an individual’s health and safety, for example.

Under the new provisions a worker now has to show that they had a reasonable belief that their disclosure was in the “public interest” (albeit that this is not defined further) for the disclosure to qualify for protection.

Public Concern at Work, known as the whistleblowing charity, argues that this adds an additional hurdle for workers to overcome if they feel the need to speak up about wrongdoing in the workplace. However, it should be noted that the worker only has to show they had a reasonable belief that this was the case, not that their disclosure was in the public interest which widens the scope in this regard.

“Good faith” requirement

The “good faith” requirement under the previous framework required that a disclosure be made by a worker in “good faith” or with the primary motive being to right a wrong, in order to be qualifying.

It has been suggested that this requirement has been removed to counteract the introduction of the “public interest” requirement above, as there has been some serious criticism of government for a failure to consult on that change.

Despite the fact “good faith” is no longer a legal requirement, where a tribunal considers a disclosure has not been made in such a manner it may reduce any award it makes to a complainant, who has been successful in a claim for unfair dismissal or detriment based on a protected disclosure, by up to 25%.

Vicarious liability

Following the decision in NHS Manchester v Fecitt and others [2012] where the Court of Appeal held that an employer could not be held to be vicariously liable where an employee victimises another employer who is a whistleblower, changes have been made to the law.

Employers will now be held to be vicariously liable for any detriment caused by an employee on another employee. In addition, personal liability for employees who victimise another employee has been introduced.

There is however a statutory defence available if an employer can show that they took all reasonably practicable steps to prevent the actions alleged from occurring.

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