When can you blow the whistle on your employer?
Disclosures about the NHS and police have put changes to employment law in the spotlight
Saturday 29 June 2013
Legislation sometimes creeps into force with little fanfare. A whole raft of changes to our employment rights has gone almost unnoticed in the last few months.
Did you know, for example, that unpaid parental leave increased to 18 weeks, or that the consultation period for large-scale redundancies was reduced from 90 days to 45 days? But when the headline writers became obsessed with whistleblowers in the NHS and the police service the latest employment law changes were destined to be put under the spotlight. So when is it OK to be a whistleblower and when is it permissible for your employer to sack you for your efforts?
From last week, changes to the law means that the person who blows the whistle has some legal protection if making a “protected disclosure”, which, in the reasonable belief of the worker or employee, is made “in the public interest”. The previous requirement, that protected disclosures must be made “in good faith”, has been removed, but this now allows tribunals who decide otherwise to reduce any compensation by up to a quarter if the whistleblower had suffered some harm or “detriment”, or been dismissed.
You could be forgiven for complaining that the legislation isn't written in user-friendly prose. What exactly do “protected disclosure”, “reasonable belief”, “good faith”, “detriment” and “in the public interest” mean in practical terms and what are the chances of ending up on the wrong side of the law?
Lee Gabbie, employment law specialist and a partner at Bracher Rawlins LLP, says: “The Public Interest Disclosure Act came into force 15 years ago to protect individuals who raise matters 'in the public interest'. Since then, case law has taken the legislation way beyond its original scope, extending to the workplace matters which have little impact on the wider general public. These reforms are meant to rein in claims by ensuring that the protection is confined to matters of 'public interest'.”
So whether or not something is in the public interest is the key to your protection if you blow the whistle. The worry is that there's no cut and dried rule about what is and isn't in the public interest.
If you decide to blow a whistle and your employer reacts by sacking you, you're reliant on an employment tribunal to decide who's right and who's wrong. If it concludes that the disclosure you made was in the public interest you're protected; if not, you're out on your ear without any compensation.
However, one consequence of the public interest requirement is that blowing the whistle on breaches of your own employment contract isn't likely to count. If you have any complaints of that sort you will have to go through the company's grievance procedure.
Even if your disclosure is “in the public interest”, there's the additional question of whether or not you made it “in good faith”.
Up until now if you made a disclosure in bad faith – for example because you wanted to damage the company's reputation – your boss could sack you and win against you at an employment tribunal. Now that defence isn't enough.
Mr Gabbie says: “It's hoped that the new power of the employment tribunal to reduce damages awards by up to 25 per cent will prevent multiple claims. However, I'm rather sceptical that this will be a sufficient deterrent to 'bad faith' whistleblowers.”
If you do want to blow the whistle on some poor practice get legal advice as to the likely outcome. Employers should update their whistleblowing policy to reflect the changes and make sure employees know about them.
They should also make sure that other employees don't mistreat whistleblowers by bullying or harassing them. It's no longer just the employer's behaviour from which whistleblowers are protected.
Another change that came into force on Tuesday means that employees won't have a time limit on how long they must work for an employer before they can claim compensation for dismissal if the reason for it is political beliefs or affiliations.
There are more changes in the pipeline over the summer and autumn, such as the introduction of fees to make employment tribunal claims, new caps on compensation for unfair dismissal, and changes to the rules about transferring employees and their contracts to a new owner.
I'll keep you posted.
Q: I moved house about three months ago and keep getting mail for previous occupiers, despite sending them all back. It looked like they were from debt collection companies as there was a lot of red print, which I took to be warnings. The other day a letter addressed to “the owner” threatened me with court action and, if I didn't respond within two weeks, I faced losing the property. Surely I can't be held responsible for debts run up by someone else? What can I do to avoid a poor credit rating or be dragged through court?
A: Credit information, and details of payments made or missed on loans, cards and agreements, is not recorded by address but is specific to the person concerned. Someone else's bad payment record won't affect your credit history. Write back to the debt collection agency and make it clear you are the new owner and have no connections with the person who owes them money. Debt collection agencies are persistent as they believe they are being told lies by someone pretending to be the new owner. They can check on the electoral register and with the land registry to make sure it's you who owns the house. Then they will stop bothering you.
Independent Partners; request a free guide on NISAs from Hargreaves Lansdown
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