· Features

Whistleblowing changes: be prepared

Whistleblowing has hit the headlines recently. First Edward Snowden, a contractor working for the US National Security Agency, leaked alarming details of its phone and Internet surveillance activities, while the exposure of cover-ups at the NHS Care Quality Commission (CQC) was also front-page news around the UK.

Snowden stated he did it to "protect basic liberties for people around the world" and has now fled the U.S as his actions are being treated as a criminal matter. With the CQC, a report commissioned by a new executive team revealed attempts to suppress a highly critical report.

Such whistleblowing to highlight wrong-doing and maladministration is increasingly seen as vital for protecting the public, and whistleblowers enjoy some statutory protection from reprisals by their employer (otherwise they would be even more reluctant to come forward).

With such incidents grabbing the headlines, it may seem surprising that this week the whistleblowing law is in some respects being tightened to reduce, not increase, the number of people able to cite this as grounds for unfair dismissal.

However, this change by the Government is needed and timely.

Since 1999, when the whistleblowing legislation was introduced, the number of employees claiming to have been sacked, mistreated or bullied for exposing corrupt practices at work has increased 15 fold (latest figures show 2500 whistleblowing claims were issued last year)

Although the majority of cases are settled before they get to tribunal, the average pay out for those that make it to a hearing can be quite costly at £130,000, with the biggest being £3.8 million.

A quick look at these numbers might indicate that there is a lot for us to be worried about, with thousands of people each year feeling compelled to risk their job and even livelihood to expose wrong doing and protect the public interest.

It has been a growing trend that this law is often abused by many senior executive and the well paid (often in the City) who use it, manipulatively, by claiming they are being dismissed for whistleblowing to secure higher pay-outs.

How has this happened? Well, perhaps surprisingly the original legislation did not specify that whistleblowing disclosures had to be in the public interest despite being called the Public Interest Disclosure Act. This has allowed people, typically senior managers being dismissed, to seek to use it as a bargaining chip in negotiations over a severance package.

For instance, an employee might claim he or she was a whistleblower for highlighting such routine things as problems with the business's IT system, its risk procedures or because they have complained to their employer about a breach of their own employment contract, such as failing to deal with a grievance or to pay a bonus.

There claim would be "I raised such-and-such a problem with the CEO, or I raised a grievance with HR and a few weeks later I was dismissed. I am covered by the whistleblowing legislation and will take you to a tribunal unless I get X% more than you are offering".

Clearly the government of the day intended the legislation to be about encouraging people to step forward to protect the public, not in connection to more mundane business problems and certainly not in connection with personal concerns about breaches of a person's own employment contract.

This is now being tackled with two new requirements. Firstly, claims must now be in the public interest. With this change, a claim by an employee will only qualify for protection if the worker who makes it reasonably believes that the disclosure is made in the public interest.

Secondly, there is the removal of a requirement that a disclosure has to be made in good faith in order to attract whistleblowing protection. The good faith requirement focuses on a whistleblower's motives for making a disclosure. A disclosure is only made in good faith if the predominant motive is directed towards remedying the wrong doing, rather than for personal gain.

While at first sight this might appear somewhat alarming, its effect is counteracted by the new requirement for the disclosure to be made in the public interest. The change is not therefore as far-reaching as might first appear.

These changes should be particularly welcomed by employers, who have found the loophole being used all too frequently. It remains to be seen how tribunals will determine what counts as the "public interest" and what does not.

However, this is not the last on changes to whistleblowing laws.

Further changes on the horizon

The Whistleblowing Commission was set up by the whistleblowing charity Public Concern at Work earlier this year to examine the effectiveness of current arrangements and make recommendations for change.

Responses to the Consultation were required by 21 June 2013 and the Commission intends to publish a paper summarising the responses by the end of 2013. We can therefore expect to see further changes in 2014.

Tina Wisener (pictured) is a partner at the UK employment law firm, Doyle Clayton