Blowing the Whistle on False Whistle-blowers?

For those of you who don’t know much about the law on whistle-blowing (as set out in the Public Interest Disclosure Act 1998), it essentially protects  workers from detriment or dismissal if they make, in good faith, what are known as “qualifying disclosures” (usually to their employers) that, in their reasonable belief, one of the following events has occurred, is occurring or is likely to occur:

1.  A criminal offence

2. Breach of any legal obligation

3.  Miscarriage of justice

4.  Danger to the health and safety of any individual

5.  Damage to the environment

6.  The deliberate concealing of information about any of the above

The key here is that, as the law currently stands, in order to be “protected qualifying disclosures”, they need only to be made in good faith.  There is no specific requirement for the disclosures to be made in the public interest.  What this means is that an employee who, in good faith, makes a disclosure which relates to a breach of his own contract of employment (i.e. a breach of a legal obligation), such breach affecting only him, will be protected from suffering detriment or dismissal as a result.

The protection from unfair dismissal for whistle-blowers is immediate.  There is no “qualifying period” of employment before the employee can pursue such a claim and the ordinary cap on compensation which can be awarded for unfair dismissal is removed.  This has arguably made pursuing a whistle-blowing claim very attractive, especially for those who have not been working for their employer very long or whose high salaries mean that ordinary unfair dismissal compensation, being capped, would not adequately compensate them if they were unfairly dismissed.

The Government’s view, however, is that this very wide protection currently afforded to whistle-blowers is open to abuse by employees with limited service or very high salaries who suspect that they might be about to lose their jobs and hence make disclosures about alleged breaches of their own contracts of employment.  However, I have seen no evidence that any such abuse is any more widespread than the undoubted abuse by a small number of Claimants of the Equality Act 2010 which affords immediate protection from discrimination from the point of recruitment and which, too, has uncapped compensation.    It is a fear of such claims that has certainly made many of my clients overly (and unnecessarily) fearful about dismissing (for perfectly reasonable and legitimate grounds) black, Asian or other employees with protected characteristics.  However, as I tell my clients time and again, just because someone is black, doesn’t mean that he or she can’t be dismissed for misconduct or poor performance and, provided there is no other evidence of unlawful discrimination, on what basis could they pursue such a claim?  The same could be said of employees without qualifying service who might seek to pursue whistle-blowing claims.  If the employer has done nothing wrong, then the employer has nothing to fear.

Nevertheless, the Government has determined that the law as it stands does not provide enough protection for employers from spurious whistle-blowing claims and as such Clause 15 of the Enterprise and Regulatory Reform Bill will amend the Employment Rights Act 1996 so that qualifying disclosures must in the reasonable belief of the worker be made “in the public interest”.  This will apply to all the categories of protected disclosure above.  However, the requirement for the disclosure to be made “in good faith” will be removed.

In seeking to solve one perceived problem, to my mind, the Government has created another – there will undoubtedly be endless litigation seeking to determine exactly what is meant by “in the public interest” given that breaches of an individual’s’ contract of employment may well have an element of public interest and it will also place an extremely onerous burden on the employee, particularly in the case of the employee without legal representation.   Hardly likely to promote the culture of openness that the Government says it is seeking, particularly in light of the recent problems with the NHS.










About Belinda Lester
I am the managing director and founder of Lionshead Law, a boutique virtual law firm specialising in employment, immigration, commercial and IP law.

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