Change blowing in: Whistleblowing update

Whistleblowing has barely been out of the headlines in recent months: criticisms in the Francis Report zeroed in on the importance of whistleblowers, and this was swiftly followed by changes to 'gagging clauses' in NHS Compromise Agreements.  This month, we saw new legislation come into force which made significant changes to the way in which whistleblowing operates.  With all the changes that have taken place, Julian Hoskins takes the opportunity to review whistleblowing past and present, and provide some practical suggestions on whistleblowing going forward.

The past: legislative background 

The idea of whistleblowing protection was forged in the wake of a series of public disasters and scandals in the late 1980s and early 1990s: the Zeebrugge ferry disaster, the Piper Alpha explosion and the Barings Bank collapse demonstrated that individuals had been aware of certain risks, but had been afraid to speak out.  Consequently, a private members bill was introduced in order to establish a framework of legislative protection for those who 'blow the whistle'.  Since then, there has been a steady year on year rise in the number of whistleblowing claims – no doubt buoyed by two key factors

1. Tribunals are not restricted by the usual upper limit on compensation for a claim with a whistleblowing element; and
2. there is no minimum period of employment required in order to qualify for protection as a whistleblower. 

Furthermore, since the Employment Tribunal decision, Parkins v Sodexho, in 2002, it has been possible for employees to bring whistleblowing claims in relation to concerns raised about their own contracts – thereby, arguably, extending the scope of whistleblowing protection beyond its original intended remit.

The relevant legislative provisions are found in section 43A-K of the Employment Rights Act 1996, which is drawn from the Public Interest Disclosure Act 1998.  In brief, whistleblowers are protected from dismissal or detriment for making 'qualifying disclosures.'  A qualifying disclosure must, in the reasonable belief of the worker / employee, show that one of following has occurred, is occurring, or is likely to occur:

• a criminal offence
• breach of any legal obligation
• miscarriage of justice
• danger to the health and safety of any individual
• damage to the environment
• the deliberate concealing of information about any of the above.

Under the original legislation, qualifying disclosures had to be made in good faith but (oddly, considering the title of the Public Interest Disclosure Act) there was no requirement for a public interest element. 

The present: recent changes

This month four key changes came into effect in respect of disclosures made on or after 25 June 2013.

1. In order to qualify for protection, a whistleblower must now have a reasonable belief that the relevant disclosure is in the public interest.  According to the consultation documents, the explicit intention behind this change is to close what the government described as the 'loophole' regarding disclosures made in relation to individual contracts of employment. However, there is no definition of 'public interest' in the legislation, and neither has any guidance been produced.
2. The requirement for disclosures to be made in 'good faith' has been removed. 
3.  Tribunals have a new power to reduce compensation by up to 25% if there is evidence that a disclosure was made in bad faith and the tribunal feels that a reduction would be 'just and equitable'. 
4. Liability for victimisation of whistleblowers has now been extended: a claim can now be brought against an employer whose employee has victimised their colleague for making a protected disclosure.  There will be a defence if the employer can show that they have taken all reasonable steps to prevent the detrimental treatment.  In addition, a worker who has victimised their colleague may be personally liable for their actions. Previously, it was only possible to bring a claim if the employer itself had subjected the whistleblower to a detriment, and this made it very difficult to bring a claim, even if management had done nothing to stop the victimisation from occurring.

Beyond the legislative changes, earlier this year, in Onyango v Berkeley the Employment Appeal Tribunal clarified that whistleblowing disclosures made after termination of employment do qualify for protection under the Employment Rights Act.  It had previously been thought that it was not possible to bring a whistleblowing claim post-termination.

The future: whistleblowing going forward

What should you be doing now, in the light of recent changes and as a matter of general good practice?

• Review your whistleblowing policies and procedures to ensure that they are up to date with the changes outlined above.  Note that these apply only to disclosures made on or after 25 June 2013, so the original requirements will remain relevant in relation to disclosures made before that date.
• You may also need to amend your disciplinary and / or grievance procedures if they reference disciplinary action / grievances raised in relation to malicious whistleblowing allegations, because disclosures made on or after 25 June 2013 no longer need to be made in 'good faith'.  You may also wish to ensure that you have communicated to employees that detrimental treatment of colleagues who blow the whistle will be considered a disciplinary matter.
• Whilst reviewing your documentation in the light of this month's changes, you may wish to take the opportunity to consider your approach to whistleblowing in general.  As the Francis Report highlighted, a paper whistleblowing policy is only a starting point and this needs to be supported by a culture in which individuals feel 'safe' to raise concerns without fear of reprisals.  This advice applies equally to employers outside of the health and social care sector.  Recent research has suggested that key aspects of a successful whistleblowing culture include
• • a specific whistleblowing policy, which is well publicised, written in  'plain English' and couched in supportive terms
  • clear reporting lines (including possibly a nominated 'whistleblowing officer')
  • support for whistleblowers
  • whistleblowing training for managers.

• Be aware that the new 'public interest' requirement will not necessarily preclude an employee from bringing a claim in relation to their own contract of employment.  It is possible that an employment tribunal may find that a disclosure is protected if there is a public interest element to a detriment against an individual – for example, if the employee alleges discrimination and they work for an organisation which publicly promotes itself as championing equality.  Note also that the legislation only requires that the whistleblower reasonably believes that the disclosure is in the public interest; it is not incumbent on the whistleblower to prove that the concerns they have raised are in the public interest.  We can expect plenty of satellite litigation on this point.
• Note that, following the Francis Report, NHS Employers has recommended that all NHS compromise agreements specifically confirm that the agreement does not prevent the employee from raising whistleblowing concern (as reported in our Alert ).  In practice, any clause in a contract is void as far as it seeks to prevent whistleblowing, so a compromise agreement would be ineffective to 'gag' a whistleblower in any event.  However, for clarity, employers (whether NHS or otherwise) may wish to consider including wording in contractual documentation which confirms that the contract does not seek to prevent protected disclosures.
  

•  

  Please visit the whistleblowing section of our Meeting Francis website for more practical tips on promoting whistleblowing.  If you have examples of best practice you wish to share, you may do so via this website or by emailing MeetingFrancis@bevanbrittan.com.