Blowing the whistle: now only in the public interest
Blowing the whistle, but now only in the public interest.
A dismissal is unfair if the reason for the employee’s dismissal was that he or she had ‘blown the whistle’ or made a ‘protected disclosure’, telling the employer or other prescribed person of wrongdoing in the work environment. For example, a firm cannot sack a worker because he reports a health and safety breach. There are a number of conditions that must be met in order for whistleblowing to be a ‘protected’ disclosure under the Employment Rights Act 1996. Section 17 of the Enterprise and Regulatory Reform Act came into effect on 25 June 2013 and added a further condition: that the disclosure be in the public interest.
S.43B Employment Rights Act 1996 always required that in order to be protected, the employee must reasonably believe that by blowing the whistle he is disclosing:
(a) a criminal offence;
(b) another failure to keep to a legal obligation;
(c) a miscarriage of justice;
(d) a health and safety breach that risks injury or damage to an individual;
(e) environmental damage; or
(f) a cover-up of one or more of the above.
The worker must believe the information disclosed to be true, and must not make the disclosure for personal gain. Furthermore, it must be reasonable in all the circumstances for the employer to blow the whistle. Section 43G(3) sets out a number of matters to be considered when assessing whether it is reasonable to make a disclosure, including who the disclosure is made to, the seriousness of the matters disclosed, whether the failure is continuing or likely to recur, and the parties’ duties of confidentiality.
The significance of the extra condition is unclear. Given that disclosure already had to be ‘reasonable’, it seems unlikely that this addition to the test will make very much difference. Disclosure of any serious criminal offence, health and safety breach or pollution incident would almost invariably be in the public interest. If the alleged failure were less serious, or had long since been resolved, it would have been less likely to have been considered reasonably made. It will be for courts to interpret where the ‘public interest’ lies in a given case. We await the EAT and other higher courts’ interpretation of this new clause.
