Legal opinion: Whistleblowing and the new public interest test

In the summer of 2013 we will see some important amendments to the legislation regulating protection for whistleblowers. Solicitor David Israel looks at the implications for employers and how to determine whether or not an employee’s disclosure is protected under the amended legislation.

Key amendments

The three key changes to the whistleblowing provisions of the Employment Rights Act 1996 will be:

  • employers will be vicariously liable for a worker’s conduct in victimising a whistleblower;
  • the removal of the need for disclosures to be made in “good faith”; and
  • the addition of a requirement for a qualifying disclosure to be in the “public interest”.

The fact that an employer will be liable for its workers’ conduct if a whistleblower is victimised is fairly self-explanatory and well understood in discrimination law.

The removal of the need for good faith

Some people may be concerned that the “good faith” requirement is to be removed, but this is not as concerning as one may at first think. Tribunals will have the power to reduce compensation by up to 25% if the disclosure was not made in good faith. Also, the worker will still be encouraged to raise issues with the employer first of all; any protection for wider disclosure – for example, by going to the media – only kicks in if, in short, the issue is exceptionally serious or if they have already disclosed to their employer or a prescribed person. This takes us to the public interest test.

The public interest test

The new test for a qualifying disclosure will be “any disclosure of information that, in the reasonable belief of the worker making the disclosure, is made in the public interest” and tends to show that, for example, a criminal offence has been committed or health and safety is being endangered.

What has not been taken up by the Government is the suggestion that employees should be excluded from being able to blow the whistle in relation to their own contract. This has been a major issue since the 2002 case of Parkins v Sodexho Ltd, in which the Employment Appeal Tribunal held that whistleblowing protection extended to complaints about the breach of an employee’s own contract of employment. It is useful to consider what the Government had to say on this point:

“Indeed, although our aim is to prevent the opportunistic use of breaches of an individual’s contract that are of a personal nature, there are also likely to be instances where a worker should be able to rely on breaches of his own contract where those engage wider public interest issues. In other words, in a worker’s complaint about a breach of their contract, the breach in itself might have wider public interest implications.” [Hansard, 3 July 2012]

How, then, is “public interest” defined? It is not. This is less surprising when you consider that the disclosure only needs to be in the public interest in the reasonable belief of the worker. Therefore, to have a detailed analysis of what is and what is not in the public interest would count for little if a worker could establish that, regardless, they had a reasonable belief that it was. Remember, the intention of the legislation is to allow workers to blow the whistle on serious issues where, but for the whistleblowing legislation, they would not have done so for fear of reprisal.

When looking at how tribunals are likely to consider the issue, we can draw some guidance from the Freedom of Information Act 2000, which also has a “public interest” test. That said, that Act does not define public interest either. Instead, the Information Commissioner has published guidance in which he prefers to adopt “the elephant test”, namely: “You will know it if you see it.” The 2007 guidance states that, while weighing competing interests can be difficult, “in effect something ‘in the public interest’ is simply something that serves the interests of the public”.

How to tell if a disclosure is protected

So, where will this leave us? Arguably, in a better place. To apply “the elephant test” to determine if a worker’s disclosure is protected under the whistleblowing legislation, ask yourself if the worker did “reasonably believe a disclosure to be in the public interest” and did they disclose appropriately? If so, they will be protected; if not, they will not have the shield of legislation.

David Israel is head of the employment group at London law firm Wedlake Bell

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