Whistleblowing amendment ‘could lead to a rise in spurious claims’

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The Government has issued an amendment to the Enterprise and Regulatory Reform Bill, which removes the good-faith requirement for a protected disclosure.

Under the Employment Rights Act 1996, an employer cannot subject a worker to a detriment on the grounds that they have “made a protected disclosure”. However, the Act only offers protection to individuals where the disclosure is made “in good faith”.

The Government’s amendment to the Enterprise and Regulatory Reform Bill removes this requirement. Under the amendment, if an employment tribunal finds that a disclosure has not been made in good faith, compensation awards could be reduced by up to 25%.

However, Max Winthorp, head of employment at SRF Legal and XpertHR employment law manual updating author, said that the amendment could lead to a rise in spurious whistleblowing claims: “While I appreciate that a claimant will have a new obstacle to overcome, the public-interest requirement where the burden will fall on the employee, in its amended form Parliament seems to be giving more encouragement to dress up applications as whistleblowing claims. Given that there is neither a cap on compensation nor a qualifying period this gives every incentive to an employee, particularly in the first two years of employment, to try and obtain employment protection through questionable disclosures.

“I doubt if the 25% deduction for a bad-faith claim will act as any disincentive whatsoever, particularly against the background of an uncapped compensatory award.

“Finally, it seems to me that yet again we are going to be left with a period of uncertainty. Tribunals and courts will have to learn to grapple with the problems of being an arbiter of what is in the public interest – even when faced by an employee’s clear bad faith.

“Will we see whistleblowing eclipse discrimination as a means of circumventing the two-year qualifying period?”

For more information, see XpertHR’s coverage of the Government’s amendment.

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