New test for whistleblowing

The law on whistleblowing will change on 25 June 2013 under the government’s Enterprise and Regulatory Reform Act 2013. The main change will be the introduction of a new “public interest” test.

The test is intended to reverse case law that suggested a worker could claim protection as a whistleblower for complaining about breaches to their own employment contract — a case known as Parkins v Sodexho [2002] IRLR 109 (www.bailii.org/uk/cases/UKEAT/2001/1239_00_2206.html)

Fears raised by campaigners, including whistleblowing charity Public Concern at Work (PCAW) that the new test would act as a deterrent to whistleblowers by building in an additional layer of uncertainty, were addressed to a limited extent by the removal of the requirement for whistleblowers to demonstrate “good faith”.

Another important change will be the extension of protection to whistleblowers who are bullied or harassed by co-workers because of their disclosure. The new law will make the employer vicariously liable for the acts of co-workers who victimise a colleague for blowing the whistle, reversing the case of NHS Manchester v Fecitt [2012] IRLR 64 (www.bailii.org/ew/cases/EWCA/Civ/2011/1190.html)

The implementation date for this change is not yet known. In May, PCAW released the results of a survey of 1,000 whistleblowers, showing that around 60% of workers who raised concerns about their workplace got no response from their managers.

Meanwhile, one in five was disciplined or demoted after speaking up, and a further 15% were sacked.

http://www.pcaw.org.uk/files/Whistleblowing%20-%20the%20inside%20story%20FINAL.pdf