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Whistleblowing changes – more protection or more stress for employers?

At some point we all see something at work that we don’t agree with. Most of us have a moan to our colleagues and then go about our business. But what about when that ‘something’ is potentially dangerous or illegal?

The UK Whistleblowing Law provides a means by which employees can expose, internally or externally, such issues – without fear of retribution or wrongful dismissal.

But whistleblowing has a somewhat controversial reputation. It is undoubtedly an essential mechanism for holding corrupt companies to account, but it can also attract its fair share of bounty hunters – with no cap on the amount of compensation for unfair dismissal, and no qualifying period of service.

Last week (25 June) changes were made to the law in an attempt to encourage disclosures in the public interest, and avoid manipulation of the system – discouraging those seeking to abuse the protection the policy affords.

So, how will these changes affect employers?

1. In the public interest. For a whistleblowing claim to succeed it must now be deemed to be in the public interest. However, as yet there is no clear definition of what is classed as ‘public interest’. Personal issues should be raised as a grievance.

2. Motivation for claim. Previously whistleblowing claims needed to be made ‘in good faith’. The changes now mean that the motivation for whistleblowing is irrelevant – so if a sound disclosure is made out of malice, or purely for personal gain, it doesn’t matter – as long as it is in the public interest. Where ‘bad faith’ such as this is proven compensation could be reduced by up to 25%.

3. Treatment of the whistleblower. In addition to being protected from adverse treatment by their employers, whistleblowers are now also protected from victimisation by their colleagues. Individuals who harass or bully a whistleblower could find themselves being personally sued.

4. Employer responsibility. Employers also need to take all reasonable steps to avoid the aforementioned malicious treatment of a whistleblower. Failure to do so could result in the employer being held vicariously liable for discrimination, thus bringing the protection in line with discrimination protection under the Equality Act 2010.

With these changes in mind, what should employers be doing to reflect them? Updating relevant any relevant policies, and making it clear what is a case for whistleblowing, and what is a grievance, is a must.

It is also vital that employers train their workforce on the potential personal ramifications for their actions towards colleagues in light of any whistleblowing case.

There will also be a large amount of ‘waiting and seeing’ with these changes to the law – it is likely that it will take a litigation case before the parameters of ‘public interest’ become clearer.

Of course, the easiest way to protect yourself against whistleblowing is to conduct your business with good morals and in line with the law.

“There is evidence to suggest that good HR practice and people management in SMEs are key factors in strong business performance and can lead to increased productivity.”

- CIPD people Skills Project 2017


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