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There is likely to be an increase in Employment Tribunal claims following the Government amendments to whistleblowing legislation.
The Government has introduced amendments to the Enterprise and Regulatory Reform Bill, removing the good faith requirement for a protected disclosure.
Under the Employment Rights Act 1996, it is unlawful for an employer to subject a worker to a detriment on the ground that he or she has made a protected disclosure. Part IVA of the Employment Rights Act 1996 offers protection to individuals only where the disclosure is made in good faith.
The amendment to the Enterprise and Regulatory Reform Bill removes the requirement that the disclosure is made in good faith. Good faith is kept as an issue for the remedy stage, with a 25% reduction in compensation possible where the employment tribunal finds that the disclosure was not made in good faith.
The recent amendments follow the inclusion of a provision in the Enterprise and Regulatory Reform Bill (on the UK Parliament website) amending s.45B of the Employment Rights Act 1996 to clarify that, to be protected against automatically unfair dismissal, whistleblowers must make their disclosure “in the public interest”.
Who is protected:
The extended definition of worker in s43K includes:
- Contract workers
- Agency Workers
- There is an extended definition of worker in s43K ERA 1996
There is no qualifying period – protection from day one
What is the protection
A worker who makes a qualifying disclosure
- In the prescribed way
- Should not be disadvantaged because they have made the disclosure.
- If they are subjected to a detriment, they are entitled to full compensation.
Whistleblowing claim may include claim for interim relief.
- No maximum award for UDL compensatory award
- Reduction of up to 25% of award if PID not made in good faith
- Compensation for injury to feelings available for detriment claims
There is no cap on the award for Whistleblowing