One month to go for whistleblowing changes
The issue of whistleblowing (and the lack of it)has dominated the headlines in recent weeks. From the Mid Staffordshire NHS Trust to the BBC, concerns about standards of care or the conduct of high profile employees were unreported to management for the most part.
Changes to the whistleblowing legislation, which take effect on 25 June 2013, have had little publicity by comparison but will require an imminent review of whistleblowing policies and procedures.
The current legislation
In order to encourage the disclosure of malpractice, the Public Interest Disclosure Act 1998 (PIDA) provides whistleblowers with protection against dismissal and detriment in certain circumstances. A key requirement is that the whistleblower makes a “qualifying disclosure” relating to one of six types of "relevant failure" as set out in section 43 of the Employment Rights Act 1996 (ERA), namely:
- Criminal offences
- Breach of any legal obligation
- Miscarriages 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
Significantly, the worker does not have to prove that the facts of allegations disclosed are true, or that they are capable in law of amounting to one of the categories of wrongdoing. As long as the worker subjectively believes that the relevant failure has occurred or is likely to occur and their belief is, in the Employment Tribunal’s view, objectively reasonable, it does not matter that the belief turns out to be wrong, or that the facts alleged do not in law amount to a relevant failure.
However, although the disclosures do not have to be true, they have to be made in good faith and this can mean that, disclosures that turns out to be false may still be “protected” if the worker acted in good faith, that is, acting with honest motives. Crucially, the burden is on the employer to prove that a worker has acted in bad faith.
Disclosures can also be made to people other than employers such as to Responsible Persons or Prescribed Persons and these include organisation such as the Health and Safety Executive and Audit Commission. In those circumstances, there are additional conditions that must be satisfied for the disclosure to be protected, for example, that the information disclosed and any allegations contained in it are substantially true.
So how are workers protected if they make a protected disclosure? PIDA creates two levels of protection for whistleblowers. Any dismissal will be automatically unfair if the reason, or principal reason for the dismissal is that they have made a protected disclosure. The qualifying period (of two years’ employment where employment commenced on or after 6 April 2012 or one year prior to that date) which is usually required for an unfair dismissal claim does not apply. Note that the statutory cap on the unfair dismissal compensatory award of £74,200 does not apply either and so, there is no limit on the amount of compensation that can be awarded for a successful whistleblowing claim. PIDA also protects whistleblowers from being subject to any detriment.
What are the changes?
The Enterprise and Regulatory Bill received Royal Assent on 25 April 2013 and this refers to a numbers of changes relating to whistleblowing legislation. The government recently announced the date of implementation of two of these changes as 25 June 2013.
- The first change is a rather technical change to close a loophole in PIDA whereby workers could rely on PIDA if they had suffered a detriment after raising concerns about breaches of their own contract of employment. Where qualifying disclosures are made on or after 25 June 2013, the worker, in making their disclosure, must have a reasonable belief that the disclosure is in the public interest in order to qualify for protection.
- For qualifying disclosures made on or after 25 June 2013, the good faith requirement will be removed. In its place there will be a provision whereby the Employment Tribunal can reduce compensation by up to 25% cases where the disclosure was not made in good faith. There is some concern that removal of the test of good faith could result in spurious whistleblowing claims being made because the “penalty” for bringing a claim in bad faith is at the very end of the process, that is, the remedy hearing.
Internal disclosures about malpractice should be encouraged because if they are raised internally management can take action to try and deal with them. Many organisations have put in place a whistleblowing policy which sets out clearly what steps will be taken when an allegation of malpractice is raised, for example, who is responsible for carrying out any investigation. The policy should now be reviewed to specify that disclosures must be made in the public interest. If the policy refers to the requirement that the disclosure must be made in good faith that provision should be removed. Don’t forget though to include a provision that making malicious whistleblowing allegations is a disciplinary matter. You may also want to provide training for those members of staff with responsibility for investigating complaints. Any changes to the whistleblowing policy should be publicised internally or placed on a staff intranet.
As can be seen from the recent headlines, malpractice in an organisation can result in a great deal of adverse publicity. The findings of the BBC’s own internal inquiry was that allegations of bullying were widespread and that the complaints procedure was inadequate. It plans to changes its internal complaints procedure and to set up a confidential hotline.
Whistleblowing will remain in the headlines in the months to come. The government has also announced its intention to extend workers' protection under PIDA to cover acts of detriment (such as harassment and bullying) perpetrated by co-workers or agents of the employer. This means that co-workers or agents can be personally liable in such circumstances rather than just the employer. Significantly, employers can be held vicariously liable for the detrimental treatment unless they can show that they have taken reasonable steps to prevent the detriment occurring. The date for implementation of this change is unknown. Finally, Public Concern at Work, (the whistleblowing charity www.pcaw.org.uk) set up an independent "Whistleblowing Commission" in February 2013 to review the effectiveness of the existing legislation and make recommendations for changes. A public consultation was launched and the consultation period ends on 21 June 2013. PCW intend to collate the results in the summer and to publish their findings by the end of the year.