Without a qualifying period or a cap on compensation, the recent amendments to the whistle-blowing act may pose a threat to UK employers.

The amendment was intended to remove a legal loophole whereby whistle-blowing protection under the Public Interest Disclosure Act (or PIDA) could be given to someone who has raised concerns about their personal employment contract.

What is whistle blowing?

The term whistle blowing refers to when a worker reports suspected wrongdoing at work. Officially, it’s called ‘making a disclosure in the public interest’.

Workers can report things that aren’t right, are illegal or can report if anyone at work is neglecting their duties including:

•  Health and safety dangers
• Environmental damage
• Criminal offences
• Law infringements (such as not having the right insurance)
•  Attempting to conceal wrongdoing

Why has the change been made?

Prior to the changes, whistle blowers were not protected fully from harassment and bullying in the workplace.

The proposed amendment to the enterprise and regulatory reform bill means that people who report wrongdoings against their employer will have protection from victimisation from their co-workers. The law prior to that only offered workers protection from harassment or bullying by their employer.

The protection is officially known as ‘vicarious liability’ and mirrors existing provisions in equality legalisation.

Employment Relations Minister Jo Swinson commented that this would be a positive change:

‘This amendment takes into account recent events and will place whistleblowers, who are making a difficult decision, in a better position. They will now have a specific employment protection in place and be able to have the full force of a tribunal behind them if they suffer any detriment, bullying or harassment from a co-worker. The change will not impact on good employers who see it as their responsibility to make sure their staff have a good working environment.’

Are we all in agreement?

Not everyone views the change as adequate enough. Eileen Chubb, who brought the first case under the Public Interest Disclosure Act when she lost her job as a carer in Bromley after whistle blowing about the treatment of elderly residents, stated that she felt ‘amending and patching up’ the legislation would not be sufficient enough to make a significant difference.

She comments on the expense this new change will bring:

‘Whistle blowers will now have to go to court to uphold this new clause, which means people who have absolutely nothing have to pay a deposit of up to £5,000 before being able to access this new law.’

She continues:

‘It also doesn’t address one of the central problems of Pida, which is that whistle blowing cases don’t belong in front of an employment tribunal. They are not qualified to hear these cases, which are often very complex and highly specialised.’

What about false claims?

Some also argue that the new amendments will lead to an increase of spurious whistle blowing claims.

Head of employment at SRF Legal Max Winthorp has warned that the amendment will encourage workers to dress up applications as whistle blowing claims and will not act as the obstacle it was meant to be.

He states that it will provide an incentive to attempt to obtain employment protection through questionable disclosures (especially if the employee has been with the company for under 2 years) as there is neither a qualifying period or cap on compensation.

Similarly to Chubb, Winthorp believes that courts and tribunals will now have more on their plates as they struggle to come to terms with having to decide what’s best in the public interest, when faced with an obvious case of poor faith by an employee.

Public interest or poor attempt?

So is this a case of imminent uncertainty or do the Government really have the public interest at heart?

In 2012, David Lewis, an employment law expert and professor of employment law at Middlesex University wrote an open letter to business secretary Vince Cable attacking the lack of consultation regarding the whistle blowing amendment.

Lewis argued that:

‘My prime concern with this amendment is that most people have a choice whether to blow the whistle or not and they will keep quiet if they think it is the safest and most sensible option.’

Lewis added that if people are to be encouraged to speak up about wrongdoing, they need to be reassured that following the prescribed procedures will keep them protected.