Hogan Lovells has released its employment news update for March 2013. Subjects covered include whistleblowing, shared parental leave and flexible working requests.
The Government has decided on yet another amendment to the legislation protecting whistleblowers from detrimental treatment at work. In addition to the two changes already scheduled in the Enterprise Bill – a requirement for protected whistleblowers to be acting “in the public interest” and the removal of the requirement for the disclosure to be in good faith (replaced by a power for tribunals to reduce compensation by up to 25% if the disclosure was not made in good faith), there will be a new provision making employers potentially vicariously liable for the detrimental acts of workers. There will be a statutory defence if the employer can show that it took all reasonable steps to prevent the detrimental treatment.
This issue dates back to the controversial whistleblowing case NHS Manchester v Fecitt. The case involved three NHS nurses who raised concerns about the qualifications a colleague claimed to hold and were subjected to hostility from colleagues. Amongst other things, the Court of Appeal found that an employer could not be vicariously liable for acts of victimisation by its employees. Unlike discrimination (or harassment under the Protection from Harassment Act 1997), it is not unlawful for workers to victimise whistleblowers and in circumstances where the employees had committed no legal wrong, there can be no vicarious liability…
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