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Insight

Whistleblowing reforms – are you ready?

27/06/2013
Important changes to whistleblowing law came into force on 25 June 2013.  Are your policies and procedures sufficient to protect your business?  The provisions within the Enterprise and Regulatory Important changes to whistleblowing law came into force on 25 June 2013.  Are your policies and procedures sufficient to protect your business? 

The provisions within the Enterprise and Regulatory Reform Act dealing with whistleblowing are now in force and these make several key amendments to the law:

  • Disclosures will no longer be protected unless the worker has a reasonable belief that the disclosure is in the public interest;

  • Disclosures no longer have to be made in "good faith".  However, if a disclosure is made in bad faith then compensation can be reduced by up to 25%; and

  • Employers will be vicariously liable for the actions of workers who subject a colleague to any kind of detriment because they have blown the whistle, unless they can demonstrate they took all reasonable steps to prevent this happening.  Workers can also be personally liable if they subject a colleague to a detriment.


The introduction of a "public interest" requirement may lead to an initial reduction in whistleblowing claims.  However, a worker does not have to know for certain whether a disclosure is in the public interest for it to meet the statutory test, he or she simply has to have a "reasonable belief".  It is easy to see how a worker may genuinely believe that raising concerns about alleged discrimination or health and safety breaches is in the public interest (even though the worker's underlying motivation may be personal) and therefore there is a risk that such disclosures may continue to fall within the definition of a "protected disclosure". 

How the Courts and Tribunals will interpret the legislation remains to be seen.  But whether or not workers' concerns meet the "public interest" test, employers should ensure that workers are not discouraged from raising them in an appropriate manner.  Procedures should be in place for investigating such concerns, whether that is pursuant to a specific whistleblowing policy or regular grievance procedures.

The introduction of vicarious liability for employers will perhaps have a more significant impact.  Policies should now make it clear that colleagues should not mistreat, bully or harass a whistleblower and that such behaviour may lead to disciplinary action.  However, it is not enough for employers to simply have a whistleblowing policy which bans such behaviour.  The policy needs to be clearly communicated to workers and supported by training to enable an employer to show that they have taken all reasonable steps to prevent whistleblowers from being subjected to detriment.

For any further information about dealing with these changes please contact a member of our team.

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