'Public interest' test for whistleblowing comes into force

A third of employers have faced whistleblowing allegations in the past two years, a survey has found. However, only 14 per cent of claims made it to the employment tribunal.

Changes to the laws on whistleblowing under the Enterprise and Regulatory Reform Act implemented today will limit disclosures to "matters of public interest", rather than personal issues, and remove the requirement of good faith.

A further change will make employers vicariously liable for bullying or other detriment to whistleblowers by colleagues, unless they could demonstrate that they did all they reasonably could to prevent this.

In a survey of 140 employers, Eversheds found that 3 per cent had seen over 50 whistleblowing allegations.

Many employers believed that personal reasons, not public interest were behind a substantial number, with a third saying this was a factor in every single case.

The most common motivations cited by employers were disagreement with a manager and personality clashes.

Simon Rice-Birchall, partner at Eversheds, said the introduction of employer liability for mistreatment was the "most significant change" and the one most likely to lead to changes in practice.

He said many employers had reported the problem, but dealing with it on a case-by-case basis or a "reactive approach" was no longer the right one.

In the future employers would have to demonstrate that "all reasonable steps" had been taken, requiring as a minimum a clear policy statement and training.

"Having a policy, by itself, will not be enough," Rice-Birchall said. "Taking 'all reasonable steps' will necessarily involve bringing a paper policy to life and a message to employees that legitimate whistleblowers will be supported - a step which in itself may give employees greater confidence to come forwards."

In a separate development, research by the universities of Greenwich and Sheffield has shown that employees have a better chance of success at the Employment Appeal Tribunal when a decision is made by a judge sitting alone rather than with lay members.

Under another change brought in by the ERR Act today, if cases are heard by judges sitting alone at the employment tribunal, they will be heard in the same way at the EAT, subject to judicial discretion.

The research, which examined data for 4,500 appeals between 2001 and 2011, found that appellants did better if decisions were made by judges alone, particularly if appeals were brought by employees.

Susan Corby, professor of employee relations at the University of Greenwich, said the British Chambers of Commerce had argued that lay members were unnecessary at the EAT, but the research suggested that their members would now lose more cases than before.

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