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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