UK: Whistleblowing, Political Affiliation, Religion And Settlements

Last Updated: 6 March 2013
Article by Nick Elwell-Sutton and Ruth Bonino

The Government has proposed a number of notable amendments to the Enterprise and Regulatory Reform Bill which is currently before the House of Lords. The draft Code of Practice on Settlement Agreements is out for consultation and there is new guidance on managing religion and belief in the workplace.

The proposed amendment to the whistleblowing legislation is a key concern since it could result in many more workers making tactical and self interested disclosures so that they can seek protection from unfair dismissal, and potentially force employers into making higher settlements.

Another concern for employers will be the proposal to exempt dismissals where the reason is political opinion or affiliation from the qualifying period for unfair dismissal claims. This will represent yet another avenue for employees to circumvent the qualifying period.

The Bill is due to be debated next on 26 February where these and other amendments will be considered.

Whistleblowers, "good faith" no longer required

Workers who blow the whistle about their employer's failure to meet their legal obligations or their malpractices are protected under the whistleblowing legislation because it is unlawful for an employer to subject such a worker to detriment. Currently, this protection only applies if the disclosure is made in "good faith". Also, until now, there has been no requirement for the disclosure to be "in the public interest". This has encouraged employees to bring claims for automatic unfair dismissal (particularly those without the requisite qualifying service for bringing an ordinary unfair dismissal claim) by claiming that they were dismissed because they had complained about a breach of their own employment contract. The proposals in the Bill are set to do away with this particular tactic, by requiring a disclosure to be "in the public interest".

Concerns over what "in the public interest" might mean has led to some criticism of this change since it may, arguably, deter some workers from speaking up about employer breaches in general. To counter this concern, the most recent amendment to the Bill proposes the removal of the "good faith" requirement. This means there would be no analysis of the employee's personal motive for the purposes of determining whether the employee is protected from being subject to a detriment (including unfair dismissal) as a result of having made the disclosure.

In our view, this is bad news for employers because it will encourage employees to engineer disclosures and bring unmeritorious claims, forcing employers into making higher settlements. It is proposed that good faith, or lack of it, will still be relevant to an extent because the amendment allows tribunals to reduce any compensation awarded to the employee by up to 25% if the disclosure is found to have been made in bad faith. Arguably though, this will not be enough to deter workers from making tactical claims in order to achieve a settlement.

Protection from dismissal for political opinion or affiliation

Currently, employees require two years' qualifying service before they can bring an ordinary unfair dismissal claim (or one year if their employment began before 6 April 2012). The Government has announced that where the reason for dismissal is political opinion or affiliation, the employee concerned will be exempted from this qualifying period requirement.

The proposed change (which will be made in the Enterprise Bill) stems from the case of Redfearn v UK. In that case, the European Court of Human Rights (ECtHR) found that Mr Redfearn, a bus driver for Serco, was unable to bring an unfair dismissal claim when he was dismissed after being elected as a BNP councillor, because he had less than a year's qualifying service to bring an unfair dismissal claim.

The ECtHR found that the UK was in breach of the European Convention of Human Rights by preventing individuals without the requisite qualifying period of service from making unfair dismissal claims where the reason for dismissal is political opinion or affiliation.

The proposed amendment to the Bill provides a narrow exception to the general rule that ordinary unfair dismissal claims require a minimum period of service. The alternative option for the Government following Redfearn was to introduce a free standing right to discrimination on the grounds of political affiliation. It chose not to do this which is interesting. A worker in Mr Redfearn's position today might bring a claim for discrimination by reason of religion or belief under the Equality Act 2010. Current case law indicates that political belief falls outside the scope of "religion or belief" in this context but it is possible that the attitude of the courts might change as a result of the Government's decision to make some allowance for political affiliation.

It is important to note that a dismissal on the grounds of political opinion or affiliation will not be automatically unfair (unlike, for example, dismissal by reason of pregnancy or TUPE transfer) and so the fairness of a dismissal (including the procedure) will still be assessed in the usual way.

Consultation on draft Code of Practice on Settlement Agreements

The draft statutory Code of Practice to accompany the clause in the Bill which makes pre-termination negotiations inadmissible in unfair dismissal cases, is currently under public consultation. The consultation will close on 9 April 2013.

New guidance on managing religion and belief in the workplace

In our Employment Update Religious discrimination ruling by the ECHR last month, we reported on the European Court of Human Rights' decision about religious rights in the workplace. To help employers understand the implications of this decision, the Equality and Human Rights Commission has now published a good practice guide.

The guide covers a number of questions which employers need to consider, with practical guidance and examples of requests, when dealing with religion and belief rights - including:

  • How will an employer know if a religion or belief is genuine?
  • What steps should an employer take to deal with a request?
  • What questions should employers ask to ensure their approach to a religion or belief request is justified?

Although the guide doesn't really say anything new about how to ensure your approach is justified - and often the most difficult part of managing religion or belief rights is finding a good balance between the competing interests of the employee's religious interests, the interests of the other employees and business needs - it does have useful practical guidance and suggestions for employers.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Nick Elwell-Sutton
In association with
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.