This article is from the source 'guardian' and was first published or seen on . It last changed over 40 days ago and won't be checked again for changes.
You can find the current article at its original source at http://www.guardian.co.uk/money/work-blog/2013/jun/25/whistleblowing-public-interest-edward-snowden
The article has changed 3 times. There is an RSS feed of changes available.
| Version 0 | Version 1 |
|---|---|
| Whistleblowing: is new 'public interest' test a good thing? | Whistleblowing: is new 'public interest' test a good thing? |
| (3 months later) | |
| Whistleblowing (and employers' attempts to prevent it) has had its fair share of the limelight recently. In just the past few weeks we've heard from the former undercover officer, Peter Francis, with allegations that police tried to smear the family and friends of Stephen Lawrence and Edward Snowden, the former US intelligence employee who leaked classified documents revealing US internet and phone surveillance. | Whistleblowing (and employers' attempts to prevent it) has had its fair share of the limelight recently. In just the past few weeks we've heard from the former undercover officer, Peter Francis, with allegations that police tried to smear the family and friends of Stephen Lawrence and Edward Snowden, the former US intelligence employee who leaked classified documents revealing US internet and phone surveillance. |
| There have also recently been tales of how employers have acted to try and prevent workers speaking out. The NHS has reportedly spent £2m on "gagging orders" since 2008, while the BBC has spent £28m to gag more than 500 of its departing staff. | There have also recently been tales of how employers have acted to try and prevent workers speaking out. The NHS has reportedly spent £2m on "gagging orders" since 2008, while the BBC has spent £28m to gag more than 500 of its departing staff. |
| But what is whistleblowing? In short, it is the casual name for reporting a suspected wrongdoing at work. Officially this is called "making a disclosure in the public interest". Whether you are an employee, agency worker or self-employed (if supervised), you have legal protection if you suffer a detriment or you are dismissed because you blew the whistle by making a "protected disclosure". | But what is whistleblowing? In short, it is the casual name for reporting a suspected wrongdoing at work. Officially this is called "making a disclosure in the public interest". Whether you are an employee, agency worker or self-employed (if supervised), you have legal protection if you suffer a detriment or you are dismissed because you blew the whistle by making a "protected disclosure". |
| What amounts to a protected disclosure includes: • if someone's health and safety is in danger; • damage to the environment; • a criminal offence by an employer; • if a company is failing to honour is legal obligations eg required insurance for its business; • the covering up of a wrongdoing. | What amounts to a protected disclosure includes: • if someone's health and safety is in danger; • damage to the environment; • a criminal offence by an employer; • if a company is failing to honour is legal obligations eg required insurance for its business; • the covering up of a wrongdoing. |
| If you are an employee, it will be deemed to be automatic unfair dismissal if you are dismissed because of your whistleblowing, and there is no qualifying period of service required, nor a cap on compensation if you are successful. | If you are an employee, it will be deemed to be automatic unfair dismissal if you are dismissed because of your whistleblowing, and there is no qualifying period of service required, nor a cap on compensation if you are successful. |
| From 25 June, however, the law on protected disclosures is changing and a further test is being introduced for workers under the Enterprise and Regulatory Reform Act 2013. They will now have to show that they "reasonably believe" that the disclosure they are making is in the "public interest". Unhelpfully, what amounts to a "public interest" is not defined in the legislation and it will be left to the courts and tribunals to lead the way with their interpretation. | From 25 June, however, the law on protected disclosures is changing and a further test is being introduced for workers under the Enterprise and Regulatory Reform Act 2013. They will now have to show that they "reasonably believe" that the disclosure they are making is in the "public interest". Unhelpfully, what amounts to a "public interest" is not defined in the legislation and it will be left to the courts and tribunals to lead the way with their interpretation. |
| Given the recent high profile cases that have highlighted the need for whistleblowing protection, it may come as a surprise that an additional layer of complexity in the form of the public interest test has been introduced, and it has been argued this may discourage those that would otherwise have decided to make a protected disclosure. | Given the recent high profile cases that have highlighted the need for whistleblowing protection, it may come as a surprise that an additional layer of complexity in the form of the public interest test has been introduced, and it has been argued this may discourage those that would otherwise have decided to make a protected disclosure. |
| However, the converse argument has been used to justify its introduction: the widening of the definition by the tribunals of what amounts to a qualifying disclosure has enabled opportunistic employees to make protected disclosures regarding purely private matters, such as issues regarding their individual employment contracts. This was not considered to be within the spirit of the original legislation and has prompted the reforms. | However, the converse argument has been used to justify its introduction: the widening of the definition by the tribunals of what amounts to a qualifying disclosure has enabled opportunistic employees to make protected disclosures regarding purely private matters, such as issues regarding their individual employment contracts. This was not considered to be within the spirit of the original legislation and has prompted the reforms. |
| While the new "public interest" requirement may be seen as a potential obstacle to whistleblowers making claims, there is a counter-balance also coming into force. This is the removal of the previous requirement for a protected disclosure to be made in "good faith" (this being that the disclosure had to be made with honest motives and not, for example, personal gain). Good faith will remain relevant but only if the whistleblower wins at tribunal – in that case the compensation granted can now be reduced by 25% if the hurdle is not met. It will no longer therefore be possible for an employer to argue that a whistleblower's claim should fail because it was made in bad faith – the focus of the legislation now being shifted "from the messenger to the message". | While the new "public interest" requirement may be seen as a potential obstacle to whistleblowers making claims, there is a counter-balance also coming into force. This is the removal of the previous requirement for a protected disclosure to be made in "good faith" (this being that the disclosure had to be made with honest motives and not, for example, personal gain). Good faith will remain relevant but only if the whistleblower wins at tribunal – in that case the compensation granted can now be reduced by 25% if the hurdle is not met. It will no longer therefore be possible for an employer to argue that a whistleblower's claim should fail because it was made in bad faith – the focus of the legislation now being shifted "from the messenger to the message". |
| Under more changes coming into force later in the summer, fellow workers who harass and bully the whistleblower will become liable in their own right for such actions, and they can be brought into any legal proceedings (in the same way that they can be named in discrimination claims). Employers can also be vicariously liable for their employees' conduct, unless they can show that they took reasonable steps to prevent victimisation. | Under more changes coming into force later in the summer, fellow workers who harass and bully the whistleblower will become liable in their own right for such actions, and they can be brought into any legal proceedings (in the same way that they can be named in discrimination claims). Employers can also be vicariously liable for their employees' conduct, unless they can show that they took reasonable steps to prevent victimisation. |
| It is not clear how the new rules will impact on whistleblowing. It will be particularly interesting to see how the UK courts and tribunals define "public interest" given that we have no legal definition as of yet. Such interpretation by the courts will be the real determining factor in the impact of these reforms. | It is not clear how the new rules will impact on whistleblowing. It will be particularly interesting to see how the UK courts and tribunals define "public interest" given that we have no legal definition as of yet. Such interpretation by the courts will be the real determining factor in the impact of these reforms. |
| Do you think the "public interest" test for whistleblowing claims are a good thing, and what would you consider to be in the public interest? | Do you think the "public interest" test for whistleblowing claims are a good thing, and what would you consider to be in the public interest? |
| Philip Landau is an employment lawyer at Landau Zeffertt Weir Solicitors | Philip Landau is an employment lawyer at Landau Zeffertt Weir Solicitors |
| Our editors' picks for the day's top news and commentary delivered to your inbox each morning. |