The long awaited reforms to current "whistleblowing" legislation have been made via the Enterprise and Regulatory Reform Act 2013.
The changes are as follows:
the definition of a qualifying protected disclosure will be amended to only include disclosures made "in the public interest". It is therefore expected that the majority of disclosures made about a breach of an employee's own employment contract, for example, will be excluded from whistleblower protection.
the requirement that a protected disclosure must be made in good faith will removed. Instead, there will be a power for the Employment Tribunal to reduce compensation by up to 25% where a protected disclosure is not made in good faith.
employers will be potentially vicariously liable if an employee who has whisleblown suffers detriment from another employee acting in the course of their employment. The employer will have a defence if it can show it took all reasonable steps to prevent the detrimental conduct.
These changes will come into force on 25 June 2013 and are expected to have a significant impact upon the scope of whistleblower protection.
Finally, the Government will publish a "call for evidence" on whistleblowing in Autumn 2013 in order to assess whether the protections are adequate. As part of this, it will consider extending whistleblowing protection to jobseekers. This would prevent organisations blacklisting jobseekers who have made protected disclosures against previous employers and would bring the whistleblowing legislation into line with the victimisation protection given to those who bring complaints of discrimination under the Equality Act 2010.
For more information please contact Kirsti Laird, Senior Associate (Qualified in New Zealand), or Christopher Bushnell, Associate