concerning remedies. Sections 49 and 123 of the ERA 1996( as amended) will now allow an employment tribunal, if it considers it‘ just and equitable’, to reduce any compensation for victimisation or unfair dismissal by up to 25 % if the protected disclosure‘ was not made in good faith’.
Criticism
The duty of good faith has been much criticised and its repeal has been called for by both academics and professionals. Dame Janet Smith in the Shipman Inquiry questioned whether good faith should be omitted as the‘ incrementally exacting requirements’ of PIDA were sufficient discouragement to malicious and unfounded claims. The partial removal of the condition of good faith to the calculation of remedies is an advance although its total repeal would be more welcome. The focus should be on the value of the information disclosed and not the motive of the whistleblower. A whistleblower may have mixed motives in raising a concern, but the fundamental issue is whether a disclosure is in the public interest. If a tribunal allows employers to challenge the motives of the messenger then important warnings of wrongdoing may be lost.
Whistleblowers to be protected from harassment from co-workers Changes
At present, the ERA 1996 only expressly protects workers from victimisation by their employers. When it comes into force, section 19 of the ERRA will protect whistleblowers from victimisation by a co-worker or agent of an employer when making a protected disclosure. Personal liability for co-workers and agents is introduced by amending section 47B of the ERA 1996 to provide a right not to be subjected to any detriment by any act, or failure to act, on the part of another worker or agent of the employer. The provision also imposes vicarious liability upon an employer for any detrimental treatment carried out by its employees or agents. It is‘ immaterial’ whether the action was taken with the knowledge or approval of the employer, but there is a defence if the employer can show that they took‘ all reasonable steps’ to prevent such action. This beneficial provision is not yet available to whistleblowers but will be introduced at a later date under delegated legislation. The Government have given no indication as to when this will be.
Criticism
The provisions which make an employer vicariously liable for the detrimental acts of co-workers and agents of the employer are an important change. The extension addresses the narrow interpretation of the 2011 Court of Appeal judgment in NHS Manchester v Fecitt not to extend protection against victimisation to bullying and harassment by co-workers. When they come into force, the provisions will protect workers from detriment, bullying or harassment by other workers for whistleblowing. It is notable that the imposition of the public interest test and the reduction of damages for bad faith, both of which restrict the rights of whistleblowers, will be
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