“Whistleblowing is seemingly the only workplace right they (think) they want to strengthen”

Victoria Phillips is head of employment rights at Thompsons Solicitors

The Thompsons Solicitors Weekly blog

 

Further tinkering with the whistleblowing framework, about the third time the coalition has done so in as many years, was announced last week. The BIS “call for evidence” launched last week is intended to identify whether there are any other aspects of the law governing whistleblowing which may not be protecting whistleblowers and is discouraging them from coming forward about wrongdoing.

 

This is not the “measure twice, cut once” approach to legislation that the government’s red tape challenge is based on. But that’s because ministers are pulling themselves in several directions over whistleblowing, which is seemingly the only workplace right they (think) they want to strengthen.

 

The call for evidence questions indicate they are looking for wider categories of disclosure qualifying for whistleblowing protection and different methods of making those disclosures that would entitle the whistleblower to protection.

 

There’s a suggestion that making the referral of whistleblowing claims to prescribed persons or bodies would become mandatory and that the definition of worker for the purposes of whistleblowing will be changed. This has already been done, as part of the provisions of the Enterprise and Regulatory Reform Act, to allow certain NHS contractual arrangements to fall within scope of the whistleblowing protections but, piecemeal as ever, the government wants to know if other groups of workers are excluded.

 

We’d welcome a broader definition of worker, both within the Public Interest Disclosure Act and in employment law generally. In all types of employment claims there are significant hurdles to overcome in order to demonstrate that a claimant is a worker and employers are able to rely on technical arguments to show they are not.

 

But the government is taking a far more narrow view of categories of workers than that. The last thing it wants is to make it easier to pursue unfair dismissal claims against employers.

 

There are also questions about the impact of blacklisting on whistleblowing (pity the government shows less concern about those blacklisted for trade union activities) and whether US-style financial incentives for whistleblowing would be appropriate.

 

It appears that ministers want to create high profile, celebrity cases. But the reality is that whistleblowing claims are usually decided by an employment tribunal and that ETs loathe them.

 

One practical step the government could take to ensure that only genuine cases are pursued is to take the cap off unfair dismissal compensation so that the higher paid do not just add a whistleblowing claim to try to secure adequate compensation for their losses.

 

But nothing the government is looking at which will deal with the difficultly of pursuing whistleblowing claims in the ET or tribunal attitudes to them. Wider categories of disclosure will not resolve the fact that whistleblowing claims usually have many elements and it is often not possible to demonstrate the employee suffered a detriment as a result of making a protected disclosure. Employers can usually show that disciplinary action or a dismissal was for another reason.

 

In employment law, unless it is possible to establish a direct cause between the act of whistleblowing and a subsequent detriment then the claim will fail.

 

And while health minister Jeremy Hunt continues to rail against gagging clauses in the NHS, many people whose employment relationship has come to an end have signed a compromise agreement that contains a confidentiality or non derogatory clause which prohibits disclosures. In practice the NHS has been very keen on these kinds of clauses even when they are legally uncertain.

 

It’s usually not clear whether this applies to post-termination disclosures and while case law has suggested that workers can rely on a protected disclosure made after leaving their employment to bring a whistleblowing claim, they usually fear being made to pay their severance money back.

 

Given that the government’s amendments to the public interest test and to good faith have already loaded the dice against employees by removing protection for those who blow the whistle about breaches of their own employment contract, it seems unlikely that this call for evidence will result in removing that fear for all workers.

 

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