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What you need to know about the updates to whistleblowing regulations

The government is proposing to update whistleblowing regulations to offer more protection for employees, but also to stop their misuse. Chris Fisher outlines the main changes companies need to be aware of.

Whistleblowing law was introduced to encourage employees to speak up and raise concerns about dangers or illegal practices at work without fear of reprisal.

In recent years, however, it has become apparent that the law in this area is not providing the protection it should.  Additionally, it is also being used for purposes not originally intended.

As a result, the government is proposing to introduce a number of important changes to whistleblowing law. Employers should be aware of these changes and amend their policies and procedures accordingly.

Introducing the public interest test

The first change, which will be introduced on 25 June 2013, is the introduction of a public interest test. This means employees will have to be able to show a reasonable belief that their disclosure was made in the public interest. 

This is being introduced to stop employees from claiming to be a whistleblower where they complain about breaches of their own contracts of employment.

Such claims were viewed as conflicting with the original aim of the legislation, which was to encourage whisteblowers to alert others to matters of general public concern, not matters which affected them as an individual. 

Disclosures don’t have to be in good faith

The government has also decided to remove the requirement that a disclosure be made in good faith.

Instead, motive will be taken into account at the remedy stage of a whistleblowing hearing, and tribunals will have the power to deduct a maximum of 25 per cent from damages where bad faith is established. This change will also be introduced on 25 June 2013.

Extended protection for bullied employees

A final reform, which is expected to be introduced during the summer of 2013, is to extend whistleblowing protection to employees who have been bullied or harassed by others in the workplace. 

Currently, employees who blow the whistle are only protected from adverse treatment suffered at the hands of their employer. In future, employers will be liable in circumstances where whistleblowers are harassed or victimised by their fellow colleagues.

“The government has also decided to remove the requirement that a disclosure be made in good faith”

The government will publish a call for evidence in the autumn in order to assess whether these changes have provided adequate protection and will also consider extending the protections to jobseekers.

Employers should take steps now to amend any relevant policies to reflect these changes. In particular, employers may want to explain that whistleblowing disclosures must be in the public interest. 

Amended policies should be communicated to employees so that they understand how the changes in legislation will affect them. Lastly, employers may want to consider providing training for line managers where relevant. 

Chris Fisher is an employment partner at international law firm Mayer Brown

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