The UK Government is in the process of making important changes to UK whistleblowing legislation (which will be implemented through the Enterprise and Regulatory Reform Bill). The key changes, which are expected to come into force in April 2013, are as follows.
The “Public Interest” Requirement
UK protection for whistleblowers was introduced under legislation called the Public Interest Disclosure Act. This name suggest that whistleblowing legislation was only intended to protect workers in relation to disclosures made in the public interest. However, as case law developed, it was held that despite the name of the legislation, there was no requirement for a disclosure to be in the public interest for it to be protected. The high water mark of this position was illustrated by the case of Parkins v. Sodexho, where it was held that disclosing a breach of any legal obligation (including a mere breach of a contract of employment), even where such disclosure was not in the public interest, was capable of constituting a protected disclosure.
The broad scope of protected disclosures, especially in the context of the underlying “public interest” title of original statute, has attracted criticism. Accordingly, the legislation is to be amended so that for a disclosure to be protected, it must be in the reasonable belief of the worker that their disclosure is made in the public interest. This is a welcome change for businesses, who have until now been susceptible to whistleblowing claims arising out of the most trivial disclosures. Nonetheless, it remains to be seen how the courts will interpret the scope of public interest.
The “Good Faith” Requirement
In conjunction with the new “public interest” requirement, a further proposed amendment to UK whistleblowing legislation to remove the current requirement that for a disclosure to be protected, it must be made in “good faith.” Under the new proposal, where a disclosure is not made in good faith, rather than the claim necessarily failing (as is the case now), there will be a power to reduce any compensation by up to 25%. On the surface this change is counterintuitive – there would appear to be good policy reasons for requiring disclosure to be made in good faith However, the rationale behind this proposal is that in the context of the new public interest requirement, having an addition requirement of good faith would serve as too great a deterrent against individuals making disclosures, and that moreover, given the new public interest requirement, a disclosure, even if made in bad faith, should not necessarily be unprotected if it is in the public interest.
New Definition of “Worker”
The final change being proposed to whistleblowing law is to expand the scope of those protected by the legislation. At present, the protection is afforded to “workers” a category larger than employees, which includes agency workers, non-employees undergoing training or work experience and homeworkers. However, the changes to this definition will largely apply to contractors in various parts of the National Health Service who would not otherwise be “workers,” and seems to be in response to structural changes within the UK’s National Health Service. It is noteworthy that despite the broad definition of worker, a recent Court of Appeal decision in January 2013, Clyde and Co. LLP v. Bates Van Winkelhof, held that a partner in a law firm was not a worker within the meaning of the legislation and therefore not protected by whistleblowing legislation.