10 days ago The House of Lords approved a series of government-proposed amendments regarding Whistleblower Protection currently contained in the Enterprise and Regulatory Reform Bill (ERRB).
Under the amended ERRB, workers and agents will be personally liable if they victimise a worker on the grounds that the worker has made a protected disclosure.
In addition, the employer will be vicariously liable if this is done by a worker or agent during the course of that worker or agent’s employment. However, the employer may have a defence to this if it can demonstrate that it took all reasonable steps to prevent the worker or agent from doing the prohibited act. Equally, the worker or agent will have a defence to personal liability if they can show that it was reasonable for them to rely on a statement made by the employer that their prohibited act was not in contravention of whistleblowing legislation.
This is a legislative response to a recent court decision which held that an employer cannot be vicariously liable under whistleblowing legislation where one of its employees victimises a whistleblower colleague.
Removal of obligation to disclose in good faith
The requirement for a disclosure to be made in good faith is also to be removed from whistleblower legislation. Where it appears that the protected disclosure was not made in good faith, it is proposed that the tribunal may use its discretion to reduce any award it makes to the worker by up to 25%.
It is thought that removing the ‘good faith’ obligation is for the purpose of balancing the effect of introducing an additional hurdle to future whistleblowing legislation, which will also require an employee to demonstrate that their disclosure is being made in the public interest.
Our main article about ERRB changes can be found here.
Further information on the House of Lords amendments can be found here.