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The level of whistleblowing protection for employees is likely to be significantly reduced as a result of a newly published Bill.
Whilst much of what is introduced by the Enterprise and Regulatory Reform Bill has already been announced, it does contain a couple of surprises. Alongside the change to whistleblowing, it contains a power for the unfair dismissal compensatory award to be significantly limited in the future.
The key elements of the Bill are:
- The definition of a qualifying disclosure will be changed. A disclosure will have to be “made in the public interest ” to give an employee a claim if they allege detriment or dismissal occurs a result. This should lead to a reduction in the number of whistleblowing claims employers face, as it will remove the many claims we see which relate primarily to the whistleblower’s own contractual terms and employment rights. It will however inevitably lead to arguments about the extent of the public’s interest;
- The introduction of a power for the Secretary of State to impose a cap on the unfair dismissal compensatory award by statutory instrument. This award is currently capped at £72,300 but under this power could be capped in the future either: at a figure to be identified between UK median annual gross full time earnings and three times that amount (currently being between £26,000 and £78,000); or as a specified number of weeks pay of the claimant as long as it is at least 52 weeks. If exercised, this could significantly limit the amount an employee could recover from an unfair dismissal claim;
- Provisions which will bring into force the requirement for details of all Employment Tribunal claims to be sent to ACAS first, with the time limits for claims being put on hold during an initial period whilst ACAS try to conciliate;
- Compromise agreements to be re-named settlement agreements (although notably the expected provisions aimed at actually simplifying compromise agreements are not in the Bill);
- The power for legal officers to decide certain cases instead of Employment Judges (these are yet to be determined but are expected to be low value claims);
- Judges to sit on their own to be the norm in the Employment Appeal Tribunal
- Employers who lose in Tribunal to face financial penalties up to £5,000 (halved if paid within 21 days), with the key words in the Bill being that these are to be imposed where the Tribunal “is of the opinion that the breach [fusion_builder_container hundred_percent=”yes” overflow=”visible”][fusion_builder_row][fusion_builder_column type=”1_1″ background_position=”left top” background_color=”” border_size=”” border_color=”” border_style=”solid” spacing=”yes” background_image=”” background_repeat=”no-repeat” padding=”” margin_top=”0px” margin_bottom=”0px” class=”” id=”” animation_type=”” animation_speed=”0.3″ animation_direction=”left” hide_on_mobile=”no” center_content=”no” min_height=”none”][of the worker’s rights] has one or more aggravating features”.
This Bill still needs to pass through Parliament before it becomes law, but it is anticipated that most of the provisions will come into force in the not too distant future.