The Government's flagship Enterprise and Regulatory Reform Bill seems set to make life more complicated for individuals considering raising concerns at work and for employers when they do. Peter Jones in our Employment Team explains.
A key change to whistleblower protection in the Government's flagship Enterprise and Regulatory Reform Bill, currently scheduled to come into force in April 2013, will mean that workers complaining of personal intimidation, victimisation, bullying, breach of contract or health and safety concerns not specifically related to race, sexual orientation or the other prohibited forms of discrimination, may no longer be protected. This is because they will have to prove that their complaint meets the new test requiring them to have made their disclosure in the "reasonable belief" that it was made "in the public interest."
At present, whistleblower protection broadly applies to any good faith ‘protected disclosure’ about any breach of “legal obligations” or “health and safety”, whether of personal or wider significance. It also applies to situations where a worker innocently brings information to their employer’s attention which they believe to be of concern, but without understanding the full implications of the issues the information relates to, or appreciating the possibility of a cover-up or adverse response from their employer.
What does this mean for employers?
On the face of it employers can be pleased that there will be a resulting reduction in the scope for claims of victimisation by workers raising concerns about their own contracts or personal circumstances, particularly where the worker is perceived to be a ‘serial troublemaker’ or a whistleblower in their own cause. The right of employees to claim uncapped compensation for loss of earnings resulting from dismissal or resignation and ‘constructive unfair dismissal’ proven to be in response to these sorts of disclosures will also be extinguished. This is to apparent universal praise from employers, who understandably view cynical threats of uncapped automatic unfair dismissal claims from employees within the 1 or 2 year ordinary unfair dismissal qualification period as being inappropriate for protection.
Further complications
Unfortunately for all concerned, there may well be legal and practical complications that have not yet been properly thought through. The first glaring risk is that workers with genuine concerns about bullying or their own health and safety may not believe that they can raise their concerns and be protected from victimisation. In fact, it seems quite possible that even workers who do have concerns of wider significance may not come forward due to the uncertainty that the new public interest test creates; with a potentially serious impact on public safety.
Another consequence will surely be that those workers complaining of workplace bullying who cannot cite an Equality Act ground for their complaint will believe that they no longer have a freestanding claim for ‘detriment’ and ‘injury to feelings’ resulting from any victimisation they suffer in response to raising a grievance. We may therefore be going back to the days when employees believed that the only remedy to bullying was to claim discrimination or resign, in the hope that they could prove victimisation and therefore claim constructive (possibly unfair, if they have qualifying service)) dismissal. Workers (who are not employees) would not have this option in any event, as they are not covered by unfair dismissal legislation.
Further legal complications may also lie just round the corner for employers that believe they are off the hook for ‘ordinary’ bullying and victimisation claims from existing workers who have raised personal concerns but are unwilling or unable to resign. This is due to the outcome of the recent European Court of Human Rights judgment in the case of Eweida v British Airways; a case in which the Court turned its back on long standing precedent that workers have the failsafe remedy of resignation if their human rights are being breached by their employer.
Workers therefore seem entitled to ‘stand and sue’ their employers for a breach of their human rights if their employer is a public authority or argue that the Tribunals and Courts must uphold their rights by finding a favourable interpretation of existing legislation in cases against private employers. These rights include the article 10 right to freedom of expression.
Much turns on whether it would be seen to be an exercise of the right of freedom of expression to raise concerns about non-discriminatory bullying and harassment, personal health and safety issues or other concerns not fully formed as ‘public interest’ disclosures, but there would be no certain defence to a case brought on these grounds, particularly as the Tribunals and Courts might well decide that it would be in the public interest for these rights to be upheld.
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