Senior managers will be personally liable if whistleblowers are harassed at work
Relatively few employers have experienced whistleblowing allegations and the subject has simply not caught the interest of the majority of them. There were just 142 responses to last year’s whistleblowing commission by the charity, Public Concern at Work, and a mere 78 to the latest government ‘call for evidence’. However, lack of exposure to claims is no guarantee for the future and it is vital employers understand the potential effects of the legal changes that have been and are about to be made, if they are to avoid considerable risk.
Consultation
There have been no fewer than three consultations in the last few years on how effective the UK’s whistleblowing laws are in protecting those who report employer wrongdoing. Most would agree that achieving the right balance between supporting genuine disclosures and discouraging those arising from personal disputes is a challenge. But against a backdrop of calls for substantial changes, the government’s response to its latest consultation indicates no significant plans to change the law. Instead, it proposes a “package of measures” to make existing provisions more effective, including a model whistleblowing policy and detailed guidance. There will also be a new obligation on regulators, likely to be in force next year, to report whistleblowing allegations.
Whistleblowing claims can only be raised outside an organisation to certain “prescribed persons”, such as HM Revenue & Customs, the Food Standards Agency and the Office of Fair Trading. The government believes they should be more pro-active, so it will soon be a legal requirement for these bodies to report annually on whistle-blowing allegations received.
Employers will be relieved so few changes are thought necessary. For example, job applicants will not become eligible to bring whistleblowing claims, as had been called for, and existing blacklisting protection will not be revised. But employers should not be lulled into a false sense of security. The government’s conclusion that it is understanding the law that needs improvement rather than the law itself has some basis but should not be taken to mean employers need do nothing.
Case law
Legislative change is not the only avenue by which legal provision is clarified. Employers felt the whistleblowing legal balance tipped too far in favour of employees in the Parkins v Sodexho case, which established that whistleblowing protection extended to individual contractual disputes. Two recent court decisions have made LLP members protected workers, and clarified the extent to which agency workers are protected.
The Parkins v Sodexho case prompted an adjustment last summer when the Enterprise and Regulatory Reform Act 2013 (ERRA) introduced a “public interest” requirement for protected disclosures. The change was accompanied by other measures intended to address some of the key concerns surrounding whistleblowing protection, including the removal of the need for the disclosure to be made good faith, tweaks to the category of workers protected, and the introduction of employer liability for the harassment of whistleblowers by colleagues.
The new liability imposed on employers in relation to bullying or other detrimental treatment of whistleblowers by colleagues is significant. The only basis on which an employer is now be able to defend itself against liability for the actions of its staff is by taking proactive steps aimed at preventing such conduct. Having a clear policy would be a vital first step in this, but just as important is ensuring that the policy is communicated, and providing any training necessary to put it into effect.
Management liability
Employers who may still not be persuaded that there is substance in the government’s stated commitment to engendering cultural change over whistleblowing should take note of one particular change last summer, the effect of which has yet to filter through and of which many employers may be unaware. That is the new potential for personal liability among managers and employees. Whistleblowers are now able to raise claims, not just against the employer, but against the individual whom they consider has subjected them to detrimental treatment because of blowing the whistle. If employers believed previously that they lacked tangible reason to introduce or improve a whistleblowing policy, the risk of potential claims, not just against the organisation but personally against its managers and senior personnel, must surely give food for thought.
Simon Rice-Birchall is a partner at Eversheds
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