New whistleblowing rules: how do you solve a problem like Edward Snowden?

New rules on whistleblowing have made things more confusing for Snowden wannabes and their employers, says lawyer James Hall.

by James Hall
Last Updated: 09 Oct 2013

Leaked documents showing US spy agencies tracking phone calls and internet communications.  Reports that GCHQ monitored delegates at the 2009 G20 summit in London, allegations that undercover police officers were trying launch smear campaigns against the friends and family of Stephen Lawrence, exposés about NHS cover-ups of malpractice relating to baby and maternity deaths.

If it feels like whistleblowers have been everywhere recently, you’d be right – in 2012, the (now-defunkt) Financial Services Authority reported a whopping 231% increase in calls to its whistleblowing helpline over a four-year period.

As of this week, new rules have brought some subtle yet key changes to legislation in the area. It remains to be seen whether these changes favour the employee or the employer and, there are arguments both ways. But what all parties appear agreed on is the fact that instead of simplifying what has always been a complex area of law, the changes have made it more confusing.

Public Interest Test
The most important change – and the one that will cause the most difficulties – is the requirement that anyone making a ‘protected disclosure’ must reasonably believe that it is ‘in the public interest’. 

This change is in response to the increasing number of disclosures that really aren’t of any public concern and often relate purely to the individual involved.  It was never the intention of the legislation for it to be used by individuals unhappy with their employment contracts.

In a move that may, in the short-term at least, prove useful for employers, the government’s failed to provide any definition of ‘public interest’. That means that until clear guidance is provided (whether through case law or government guidance) any employer faced with a whistleblower can (and should) seek to challenge whether the disclosure is ‘in the public interest’.

Good Faith Requirement
Another change to the legislation (that’s potentially less helpful for employers) is the focus on the message, rather than the messenger.

Previously, the whistleblower had to show they were making the disclosure ‘in good faith’.  The aim of this was to prevent spurious disclosures being made by disgruntled employees for no reason other than to cause trouble.  Under the new rules, the whistleblower’s motives can’t be used to claim their revelations aren’t a ‘protected disclosure’ and therefore whistleblowing.

That said, we haven’t seen the last of the ‘good faith’ element.  If the whistleblower wins a claim before an employment tribunal but it is found they made the disclosure in bad faith, any compensation can be reduced by up to 25%.

Vicarious Liability
Employers can now be vicariously liable for any detriment caused to the whistleblower by other workers where they haven’t taken reasonable steps to prevent it.

Admittedly, this change is less controversial than the two above and was widely expected. Indeed, until a 2012 House of Lords case, it had been considered that this protection already existed under the old rules. 

Updating Policies
Employers should make sure they take time to review the changes and update their policies accordingly, making it clear the new rules only apply to disclosures made since 25 July 2013. Any disclosures before that should be dealt with under the old rules.

While the uncertainties around the new rules remain, any employers faced with a potential whistleblowing scenario should seek early legal advice, particularly to see whether the disclosure can be disqualified under the ‘public interest’ test.

- James Hall is an Associate in the Employment and Pensions team at Charles Russell LLP
- Image: Flickr/JNW Photography

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