Changes to the law on Whistleblowing come into force today

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The law on whistleblowing changes today, 25 June, under the Enterprise and Regulatory Reform Act 2013.

As reported in previous HR Briefings, the changes to the whistleblowing legislation are:

  • The requirement for disclosures to be made in the public interest -The employee must now have a reasonable belief that the disclosure was in the public interest. It is unclear at the moment how the tribunals will interpret this public interest element as there is no definition in the legislation. Given that the employee only has to demonstrate that he “reasonably believed” the disclosure was in the public interest, as opposed to demonstrating that it was actually in the public interest, it seems possible that tribunals will simply listen to the employee’s evidence about why they thought there was a public interest element and then take their word for it.
  • The removal of the requirement for disclosures to be made in good faith - This means that the employee’s motives for making the disclosure are now irrelevant. However, a tribunal can reduce a whistleblower’s compensation by up to 25% if they can be shown to have acted in bad faith.
  • The introduction of the concept of vicarious liability of the employer and personal liability of co-workers - The introduction of vicarious liability means that the act of an employee in subjecting a whistleblower to a detriment will be treated as having been done by the employer. The employer will have a defence if it took all reasonable steps to prevent the detrimental treatment.

Social media and whistleblowing

We take a practical look at the new whistleblowing provisions in the context of social media in our current seminar series, Social Media: an update on the latest cases and challenges for HR. The seminar looks at the rise and rise of social media, and the HR response, and includes a case study in which an employee posts comments and pictures on Facebook which are potentially damaging to the company’s reputation. It considers the extent to which the employee could be protected by the whistleblowing legislation in what looks like a clear cut case of misconduct.

Click here for more information on our social media seminars.

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