Whistleblowers must prove their information is ' in the public interest ' Changes
The 1998 Act originally inserted Part IVA into the Employment Rights Act 1996( ERA 1996) to provide statutory protection to workers against dismissal and victimisation in respect of specified protected disclosures. Section 17 of the ERRA inserts a‘ public interest’ duty into section 43B of the ERA 1996, which defines those disclosures that qualify for protection. A worker will now have to show that they have a reasonable belief that the disclosure of information‘ was made in the public interest’ and that it falls into one of six existing categories of qualifying information. This requirement will come into force on 25 th June 2013.
Criticism
Whistleblowing is in the public interest but demanding workers overcome an additional statutory definition of public interest results in a number of problems. It will generate considerable uncertainly, as the test further exposes a claimant to the dangers of restrictive judicial interpretation that often fails to act in accordance with the spirit of PIDA. A whistleblower will now have to show that their disclosure is both in the public interest and falls within one of six specified categories of protected information. The classifications all cover public interest concerns relating to a criminal offence, a breach of a legal obligation, a miscarriage of justice, risk to the health and safety of an individual, damage to the environment, and the deliberate concealment of information. The overlap between these and the public interest obligation will create further confusion regarding the convoluted three-tiered legislative regime that already sets out a number of procedural hurdles for claimants to overcome. The new condition of public interest seeks to overturn the 2002 Employment Appeal Tribunal judgment in Parkins v Sodexho which broadly interpreted the‘ failure to comply with a legal obligation’ category to include legal obligations arising from a contract of employment. The Explanatory Notes to the ERR Bill justified the imposition of this new requirement as a means of excluding personal rather than public interest disclosures. However, a concern arising out of an individual contract term may still raise public interest issues regarding an employer’ s compliance with employment or safety laws. The restrictive public interest duty presents further barriers to workers who suffer victimisation or are dismissed for raising concerns at work.
Compensation to be reduced if disclosure not made ' in good faith ' Changes
The second amendment is set out in section 18 of the ERRA and also applies to protected disclosures made after 25 th June 2013. The section amends the relevant provisions of the ERA 1996 to remove all references to the condition of‘ good faith’ in the relevant tests to establish a protected disclosure and transfers it to the sections
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