Media Briefing Note: Hogan Lovells Warns of Impact of Whistleblowing Claims

LONDON, 21 June 2013 - On Tuesday 25 June three key changes come into force in the UK in relation to whistleblowing claims as various provisions of the Enterprise and Regulatory Reform Act come into effect. However some of the changes could lead to more rather than less litigation due to a lack of clarity in the legislation, according to Hogan Lovells.

Only disclosures made 'in the public interest' will be protected in future. This is intended to close a loophole which gave workers scope to argue that they should be protected as a whistleblower even where the disclosure they made had no obvious public interest to it – such as alleging that their own employment contract had been breached. This enabled employees to bypass the normal qualifying period requirements and compensation limits in unfair dismissal claims.

In addition, employees will no longer have to show that they are acting in good faith when they blow the whistle. In the past employees acting for an ulterior motive when they blew the whistle were not able to claim protection. Although such employees would be able to bring a whistleblowing claim in future, their compensation could be reduced by up to 25% if they are not acting in good faith.

Finally, employers can be vicariously liable in future if one employee subjects another to a detriment because they have blown the whistle. For example, if employees ostracise a colleague because he or she has blown the whistle, this could give rise to a claim against the employer, unless the employer has taken all reasonable steps to prevent this from happening.

Ed Bowyer, a partner in the Hogan Lovells' employment team, commented:

"The introduction of a public interest test is a welcome attempt to address the whistleblowing loophole. However, the fact that there is no definition of what is meant by 'in the public interest' is likely to lead to litigation to clarify the point, at least in the short term.

"Employers should consider amending whistleblowing policies to make it clear that subjecting someone who has blown the whistle to a detriment is unacceptable. This may help an employer with a "reasonable steps" defence – if an employer can persuade a tribunal that it has taken all reasonable steps to prevent victimisation of this type from occurring, it may be able to escape liability for the actions of its employees".

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