Changes to whistleblowing law: in the public interest?

By Alan Chalmers

Recent news stories concerning the NHS and the financial services industry have highlighted how challenging the issues associated with whistleblowing can be for an organisation. On the one hand, employers need to know if there are illegal, improper or dangerous practices going on, in order to manage risk and avoid litigation or even criminal liability. On the other hand, the disclosure of information about wrongdoing within an organisation to the public in general may hinder internal investigation, damage the reputation of the organisation and affect staff morale.

The law seeks to achieve a balance between these competing interests by providing protection for whistleblowers but only in limited circumstances. Under the current public interest disclosure legislation, it is unlawful for an employer to subject one of its workers to a detriment or to dismiss an employee on the ground that they have made a ‘protected disclosure’. This means a disclosure that, in the reasonable belief of the worker, tends to show a criminal offence, breach of any legal obligation, miscarriage of justice, danger to health and safety of any individual, damage to the environment or a deliberate cover-up of any of these.

Whistleblowing claims can be attractive to employees as they are not subject to any length of service criteria, there is no cap on compensation and there is also potential for negative publicity to put pressure on employers to agree a settlement. As a result, the law has increasingly been used in circumstances that were not foreseen when the legislation came into force. For example, claims have been brought by employees seeking to rely on disclosures of alleged breaches of their own employment contracts…

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