Tue, 03 Dec 2013
By Anthony Korn
Statutory framework details ‘must change’ to encourage employees to report wrong-doing
The Employment Lawyers Association (ELA) has called for changes to the law on whistleblowing.
The ELA has concluded the statutory conditions attached to making ‘protected disclosures’ are complex and may deter whistleblowers from exposing wrong doing. The association, whose 6,000 members include barristers and solicitors representing both employers and employees in the courts and employment tribunals, was responding to the Department for Business, Innovation and Skills’ ‘call for evidence’ on whistleblowing’s legal framework. This follows an initiative from Public Concern at Work, a charity supporting whistleblowers, which has set up a commission to review the operation of the current law. The commission is due to report later in November.
The lawyers felt that issues such as whether the whistleblower had raised the matter internally before discussing it with a member of parliament, or even the press, should be considered as part of a list of factors in determining the reasonableness of the disclosure. They also supported the idea that the list of ‘prescribed persons’ (usually regulatory bodies) identified in statutory instruments should be reviewed and updated regularly, but believed this should continue to be subject to Parliamentary scrutiny rather than the ‘say so’ of government ministers.
They identified a number of other areas where case law developments posed difficulties for potential whistleblowers: for example, gathering enough evidence (without acting unlawfully) to establish a ‘reasonable belief’ that their employer had broken the law. Under the current rules, a whistleblower must have a reasonable belief that the employer’s conduct falls within one of six listed categories of wrongdoing. The government has said it is too early to review the additional statutory condition introduced by the Enterprise and Regulatory Reform Act 2013 (section 17) that all such disclosures must also be ‘in the public interest’.
The association highlighted that there are now two different legal tests of ‘causation’ for employers’ actions short of dismissal (found in sections 48:2 and 103A of the Employment Rights Act 1996), following a Court of Appeal ruling. Effectively this now gave greater protection to those still employed than to those who have been dismissed. It suggests the same standard should apply to both situations.
The government is currently considering whether financial incentives should be used to encourage employees to ‘blow the whistle’ particularly in the financial sector, as in some US States. In the UK, a disclosure to a third party or even to a regulator would not be protected in these circumstances because the disclosure was made for ‘personal gain’. The association thinks the current statutory ban on financial incentives should be repealed and that this should be considered as part of the overall ‘reasonableness’ of the disclosure. Tribunals should be able to distinguish between genuine whistleblowers and ‘bounty hunters’, but whether those payments should be taken into account when determining any compensation received in tribunal proceedings would also need to be considered.
The ELA believes whistleblowing protection should be extended to workers not covered currently by the statutory provisions, such as solicitors who are partners of limited liability partnerships, and job applicants who are “blacklisted’ as a result of past whistleblowing activities. The association also supports the idea of a voluntary or statutory code of practice providing further guidance on whistleblowing.
Employment law barrister Anthony Korn chaired the ELA committee responding to the call for evidence on whistleblowing
Article written by Anthony Korn for the Employment Lawyers Association and published by People Management on 22nd November 2013.
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