Consultant editor Darren Newman explains why the changes introduced in 2013 to the definition of a “protected disclosure” for whistleblowing purposes, meaning that the whistleblower must now have a reasonable belief that the disclosure is in the public interest, may turn out to be cosmetic only.
Can we describe someone who complains about her workstation being cramped and uncomfortable as a whistleblower? That is the question raised by the Employment Appeal Tribunal (EAT) decision in Morgan v Royal Mencap Society EAT/0272/15.
When we think of whistleblowers, we tend to think of courageous individuals who stand up to wrongdoing within their own organisation and draw the public’s attention to it, putting at risk their own interests or career.
Quite rightly the law seeks to give such individuals special protection. The Public Interest Disclosure Act 1998 created a right not to be subjected to detriment or dismissal for making a “protected disclosure”.
What is needed, however, is a test not just of how many people might be concerned or interested in a disclosure but also of the gravity of the disclosure itself”
In such cases there is no period of qualifying service required and, crucially, no cap on the compensation that a tribunal may award. Even the most senior and well-paid executives are therefore given meaningful protection if they “blow the whistle” on their employer.
Welcome and important as the whistleblowing provisions now found in the Employment Rights Act 1996 are, there is a problem. The lack of a qualifying period and cap on compensation does create something of an incentive to invoke the Act at the slightest opportunity.
For every case that raises serious concerns about an employer’s behaviour, there are others that, on the face of it, do not seem to merit the extra protection.
The problem stems from Parkins v Sodexho Ltd [2002] IRLR 109 EAT, in which the EAT pointed out that a disclosure of information that tended to show…
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