Why a policy on the treatment of whistleblowers could now be a good idea
Author: Darren Newman
Consultant editor Darren Newman looks at the forthcoming changes to the whistleblowing legislation via the Enterprise and Regulatory Reform Bill, including the introduction of a provision that treats detrimental acts of one worker towards another as being done by the employer, making the employer responsible.
It is funny how quickly the narrative around employment rights can change. When the Enterprise and Regulatory Reform Bill was introduced in May 2012, the view that it took of whistleblowing was that it was too easy to bring a claim. A new requirement was to be introduced for protected disclosures. In order to qualify for protection, a worker would be required reasonably to believe that the disclosure was being made in the public interest. This was designed to close the perceived loophole created by Parkins v Sodexho Ltd [2002] IRLR 109 EAT, in which the Employment Appeal Tribunal held that even the breach of the claimant's own contract of employment was a matter that could form the basis of a whistleblowing claim. This was considered to be open to abuse by any claimants who were essentially angling to get round the need for qualifying service or who wanted to avoid the cap on compensation that came with a normal unfair dismissal claim.
It certainly seemed to make sense that public interest disclosures had to be disclosures made in the public interest. However, there was some concern that the additional requirement would deter workers from making potentially serious allegations, as they would be doubtful about whether or not they were sufficiently important to warrant protection.
Then came the Mid-Staffordshire NHS scandal and a flurry of news stories about the vulnerability of whistleblowers. The image of a typical whistleblower changed and, instead of someone playing the system to increase the value of his or her claim, the picture was one of an individual struggling heroically to alert the authorities to dangerous malpractice.
Perhaps coincidentally (and perhaps not), the Government introduced amendments to the Bill as it came before the House of Lords. The first of these will remove the requirement that a public interest disclosure must be made in good faith. Disclosures made in bad faith will be protected, but the tribunal will be able to reduce compensation by up to 25%. At first sight this may seem strange. Why should someone be protected for making a disclosure in bad faith?
However, we should remember that bad faith is not the same as simply making a false allegation. In Street v Derbyshire Unemployed Workers' Centre [2004] IRLR 687 CA, the Court of Appeal held that, even where the claimant believed the allegations to be true, they were not made in good faith if motivated by an ulterior motive - in that case, personal animosity towards the subject of the allegation. In other words, a worker could make a genuine allegation of serious wrongdoing - which is clearly in the public interest - and be excluded from protection because of his or her personal motives. The removal of the good faith requirement solves this problem. At the same time, the need for the employee reasonably to believe that the allegation is in the public interest has some overlap with the previous need for good faith. A knowingly false allegation will still not be protected because it is inconceivable that the worker could reasonably believe that making a false allegation is in the public interest.
The second new amendment is aimed at reversing the effect of another controversial decision. In Fecitt and others and Public Concern at Work v NHS Manchester [2012] IRLR 64 CA, the Court of Appeal held that an employer is not vicariously liable for any detriment imposed on a whistleblower by a fellow employee. The amendment essentially places bullying of a worker on the grounds that he or she has made a protected disclosure on the same footing as harassment based on a protected characteristic. The employer will be liable for detrimental acts done in the course of employment, unless it can show that it took all reasonable steps to prevent such acts from taking place. The individual who takes the action against the whistleblower will also be personally liable.
This change could have a serious impact where the worker's disclosure is not welcomed by his or her colleagues, who may in fact be the subject of any allegations the worker has made. Large employers - particularly those in the public services - will need to look at how they make staff aware of their responsibilities when dealing with colleagues who have made protected disclosures. I am usually against developing an HR policy for every eventuality, but a policy dealing with the treatment of whistleblowers is now probably a good idea.
There is no sign so far of the Government acting on the other media concern, which is the use of gagging clauses to silence whistleblowers. In reality these are simply confidentiality clauses inserted into compromise agreements almost as a matter of course. Nobody is being "gagged" because entering into a compromise agreement is entirely voluntary. Indeed, it seems likely that any agreement that purports to prevent further protected disclosures is void anyway. Section 43J of the Employment Rights Act 1996 specifically provides that a compromise agreement made between a worker and an employer cannot prevent future protected disclosures. The only ambiguity is whether or not that extends to a compromise agreement reached between a former worker and the employer. With some of the news stories we have seen recently, that question may be tested by the courts in the near future.
It may seem straightforward that compromise agreements should not be able to prevent further disclosures. However, for an employer that believes that the allegations are completely unfounded, stopping them from being repeated can be really important. Not every whistleblower is heroic. Some are unreasonable people whose constant stream of allegations can be hugely disruptive. The problem is that there is no obvious way of protecting what we might call genuine whistleblowers, without also giving ammunition to those less worthy of protection. Anyone with experience of employment tribunal litigation is likely to recognise the phenomenon of the claimant who throws in a completely unreasonable whistleblowing claim. Instantly, the case becomes more complicated and expensive to defend. Allowing whistleblowers to bring individual colleagues in as respondents and giving them greater scope to claim that they were bullied as a result of their allegations will certainly add to the difficulties caused by this sort of claim. Whether or not you regard that as a price worth paying for a system that provides effective protection for genuine whistleblowers depends on your view of who a typical whistleblower is - hero or troublemaker.
