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Law for Business

Knowhow - guidance - precedents

24 JUN 2013

Whistleblowing

Pam Loch

Managing Partner

@LochLaw

 

The Public Interest Disclosure Act 1998 introduced into the Employment Rights Act 1996 (the ERA) protection for whistleblowers against unfair dismissal and unlawful detriment.

To gain protection, the whistleblower must have made a ‘qualifying disclosure' in ‘good faith' - a ‘protected disclosure'.

Qualifying disclosure':

The information disclosed must, in the ‘reasonable belief' of the worker, show that one of the following has occurred, is occurring, or is likely to occur:

  • 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.

‘Protected Disclosure':

The information must be disclosed in ‘good faith':

  • Internally, to the employer, or other responsible persons.
  • Externally to prescribed persons, such as a government minister or statutory body, if certain conditions are met.
  • More widely in even more limited circumstances.

‘Good faith'

The belief must be an honest one and the worker's predominant motivation behind the disclosure must be to remedy the wrong alleged, rather than some ulterior motive such as malice or personal antagonism.

‘Reasonable Belief'

The worker does not need to prove that the facts or allegations disclosed are true, or that they are capable in law of falling within one of the prescribed categories of qualifying disclosure, merely that he has a subjective belief that the failing has occurred or is likely to occur. It does not matter that such belief may ultimately prove to be incorrect.

With effect from 25 June 2013, a number of amendments will be made to the ERA whistleblowing provisions:

  • Protected disclosures must have a public interest element in the reasonable belief of the worker.
  • The requirement for disclosures to be made in ‘good faith' is to be removed, although tribunals will have the power to reduce any compensation awarded by up to 25% where protected disclosures are not made in good faith.
  • Personal liability for workers who subject a whistleblower to a detriment, as well as vicarious liability for the employer.

 

Pam Loch, Managing Partner of niche employment law practice, Loch Associates Employment Lawyers and Managing Director of HR Advise Me Limited.  

For more information on Loch Associates Employment Lawyers please go to www.lochassociates.co.uk and for HR Advise Me go to www.hradvise.me

 

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