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Whistleblowing: 'public interest' requirement

16 January 2014
Changes to the Employment Rights Act 1996 to establish a ‘public interest’ requirement for whistleblowing

Background
It is unlawful for an employer to subject one of its workers to a detriment (including threats, disciplinary action, loss of work or pay, or damage to career prospects) or dismissal on the ground that they have made a protected disclosure (section 47B(1), Employment Rights Act 1996).

A qualifying disclosure is any disclosure of information which, in the reasonable belief of the worker, tends to show that one of following has occurred, is occurring, or is likely to occur (section 43B(1) Employment Rights Act 1996):

  • a criminal offence
  • breach of any legal obligation
  • miscarriage of justice
  • danger to the health and safety of any individual
  • damage to the environment
  • the deliberate concealing of information about any of the above.

A qualifying disclosure only became a protected disclosure if it was made in ‘good faith’. It was generally always thought that these provisions were in place to govern disclosures which had a ‘public interest’ aspect, but the case Parkins v Sodexho identified a loop hole. In this case it was held that the definition of protected disclosure was broad enough to cover a breach of the whistleblowers own contract of employment. In essence, enabling a worker to ‘blow the whistle’ and gain the special protection which flows from this in respect of matters that are of no direct concern to anyone other than the worker and the employer.

25 June 2013 changes
On 25 June 2013 the definition of protected disclosure was changed so that:

  • the disclosure will now only be qualifying if it is “in the public interest”; and
  • there is no requirement for the disclosure to have been made in good faith.

“In the public interest”
For any disclosures made after 25 June 2013 the whistleblower will now have to show that they reasonably believed the disclosure was in the public interest. However, there is no definition of public interest. Case law will undoubtedly determine the approach, but in the meantime the waters are muddied. This additional hurdle will likely mean an increase in interim applications to determine whether the public interest hurdle has been jumped, and consequently an increase in time and expense in bringing such claims.

The Government also rejected a proposal to close off close off complaints relating to a personal individual contract, as there may be instances where such disclosures are in the public interest. So the Parkins v Sodexho loophole has not been completely shut.

“good faith”
Good faith was described as acting with honest motives. Tribunals were directed to consider whether the predominant motivation was to remedy the wrong identified by the disclosure, or whether there was some “ulterior motive”, in which case the disclosure was unlikely to be made in good faith.

Whilst it was originally intended to scrap the good faith requirement altogether, it has not disappeared completely. From 25 June 2013 “where … it appears to the tribunal that the protected disclosure was not made in good faith, the tribunal may, if it considers it just and equitable in all the circumstances to do so, reduce any award it makes to the complainant by no more than 25% (section 49(6A) Employment Rights Act 1996)”. This will apply where a whistleblower has been successful in a claim for unfair dismissal or detriment based on a protected disclosure.

These changes do not apply to disclosures made before 25 June 2013. In the context of claims against an employer, it is important to note this change in the law. It may enable either a reduction in awards or, depending on how the ‘public interest’ test is applied, being able to evidence that the disclosure should fall outside of the protection of this section.

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The content on this page is provided for the purposes of general interest and information. It contains only brief summaries of aspects of the subject matter and does not provide comprehensive statements of the law. It does not constitute legal advice and does not provide a substitute for it.

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