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29 August 2013

Changing the tune for whistleblowers

In recent months, the names Bradley Manning and Edward Snowden have become synonymous with leaked documents and whistleblowing at the highest level.  Closer to home, both the BBC and the NHS have been reported as spending millions of pounds on “gagging orders” to suppress critical reports and stop departing staff speaking out.

Introduced in 1999, the Public Interest Disclosure Act affords legal protection if you suffer a detriment or are dismissed because you blew the whistle by making a “protected disclosure”. This could include a criminal offence by an employer, the covering up of a wrongdoing or if a company is failing to honour its legal obligations.

Since the legislation came into force, figures show that the number of employees claiming to have been sacked, mistreated or bullied for exposing corrupt practices at work has increased 15-fold. However, that could change under the recently-introduced Enterprise and Regulatory Reform Act 2013.

A welcomed change

For the first time, whistleblowers will have to show they “reasonably believe” that the disclosure they are making is in the public interest, something left out of the original legislation.

Jo Davis, partner and employment law specialist, says the change is necessary.

“There has been a marked increase in the number of cases and very often this has been because senior managers have used the whistleblower card to claim higher payouts from employers as part of their severance package,” she said.

“The law was never intended to be used to cover individual grievances, so the fact there is now a need to show ‘public interest’ to use this defence is a positive step forward and one which employers should welcome.”

A second change under the new Act, which came into force on 25 June, removes the requirement that a disclosure has to be made in good faith in order to attract whistleblowing protection.

Jo concluded: “Previously, an individual had to show that a protected disclosure was made with honest motives and to remedy the wrongdoing, as opposed to being for personal gain. Given the new ‘public interest’ requirement, this is no longer necessary.”

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