Enterprise and Regulatory Reform Act Commencement Dates - 1/3

On 25th June 2013, most of the provisions relating to whistleblowing come into force (in particular, sections 17, 18 and 20).  They are important, because if the principal reason for a dismissal is that a worker made a protected disclosure, then the normal two year qualifying period and the cap on the compensatory award are circumvented.  These changes will be discussed during session 3 of my forthcoming Employment Law MasterClass, being held in Edinburgh, Cardiff, Birmingham, Manchester and London during July 2013.

First, they confine whistleblowing protection to those who make disclosures which, in "the reasonable belief of the worker making the disclosure, is made in the public interest".  This effectively reverses the ruling in Parkins v Sodexho and will normally prevent a disclosure alleging a breach of the employee's contract of employment attracting whistleblowing protection. 'Public interest' is not defined, but it probably means something that affects a class of people and not just one individual.  Bear in mind that the disclosure doesn't have to be in the public interest; it is sufficient if the worker reasonably believes it to be in the public interest - a subtle but important difference.

Second, they expand whistleblowing protection to those who make disclosures in bad faith (ie motivated primarily by money or spite, rather than a desire to put right a wrong).  However, if the tribunal thinks that the disclosure was made in bad faith, then it will have the power to reduce compensation by up to 25%.

Third, they tweak the definition of 'worker' (for the purpose of whistleblowing only).

Also included in the Enterprise and Regulatory Reform Act 2013, but not coming into force on that date, is section 19 (which imposes vicarious liability on an employer for detriments, on grounds that a worker made a protected disclosure, by other workers on that first worker).  This reverses a loophole in the original drafting of the whistleblowing legislation, and brings vicarious liability for whistleblowing into line with the position under the Equality Act 2010.