All over the place on whistleblowing

Victoria Phillips is head of employment rights at Thompsons Solicitors

The weekly Thompsons Solicitors Blog


We now know that Section 17 of the Enterprise and Regulatory Reform Act, which covers whistleblowing, comes into force on 25 June 2013. It restricts qualifying disclosures to those made “in the public interest” and which are “reasonable in the circumstances”.


So no matter how much the actions of an employer in breaching a worker’s contract may reflect on it as a public organisation, such a disclosure is unlikely to satisfy a public interest test.  Being denied your rightful holiday pay is, apparently, a personal, not a public matter.


As I’ve written before, the government is all over the place on whistleblowing. It uses ERRA to further restrict protection for whistleblowers while simultaneously taking the credit for banning gagging clauses in the NHS which stop staff from speaking out about patient safety or care (although any agreement which prevents a worker making a protected disclosure was already void under the Employment Rights Act 1996).


Ministers have also promised a call for evidence to establish whether the whistleblowing legislation, including its scope, should be reviewed.


Now the charity Public Concern at Work has set up a commission with a view to influencing the government on a number of issues, including broadening the definition of a protected worker and adding trade unions to the list of persons to whom a protected disclosure can be made.


Its consultation, which ends on 21 June, seeks views on attitudes to whistleblowing among individuals, organisations and wider society, whether law and policy is adequate and effective, how whistleblowing can be incentivised, whether regulators should be doing more and if employment tribunals need more powers to protect whistleblowers.


Thompsons will certainly have something to say about the way tribunals treat whistleblowers. Put bluntly, they loathe such claims. And given the sort of claims they tend to see are those that that section 17 will knock on the head, it is difficult to imagine this government giving ETs greater powers to help claimants.


See this week’s LELR for more details about ERRA implementation dates.

Click on the image to access the full Thompsons Labour and European Law Review


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