The law is now refocused on offering whistleblowers more comprehensive protection for standing up and raising issues of public concern, say David Walton, Danielle Ayres and Jennie Fecitt
Following a spate of high-profile whistleblowing cases, the issue appears to be in the public eye more than ever before.
In turn, the government has been refining and improving the law in this area. For example, the health secretary said in March that confidentiality clauses in NHS compromise agreements were banned, then significant changes were made to whistleblowing legislation in June.
This article looks at these changes in the law and their effects.
The Public Interest Disclosure Act came into force in 1999 and received wide support from all sides within politics, unions and the business and public sectors.
This act and certain sections of the Employment Rights Act 1996 were drawn up to protect employees who made disclosures in the public interest; they also gave staff the right to claim against their employers for dismissal or detriment suffered because they had blown the whistle.
“We need to foster an open and transparent culture at all levels within the NHS”
Despite the best of intentions and initial optimism, legal loopholes soon became evident as cases came before tribunals and courts, leaving whistleblowers vulnerable after suffering prejudice at the hands of their employers.
Following a number of well-publicised cases – not least the public inquiry into the appalling standards of patient care at Stafford Hospital – the government finally recognised the need to make changes to the legislation to encourage disclosures to be made in the public interest. On 25 June, such changes were implemented by the Enterprise and Regulatory Reform Act 2013.
The principal changes are:
Reasonable belief: a worker must now reasonably believe that their disclosures are made in the public interest to be protected from dismissal or detriment. The original law was quite loosely drafted, which meant that workers could bring complaints that were more in the nature of personal grievances under the protection of the whistleblowing legislation, as opposed to disclosures made in the wider public interest.
In principle, this change can be welcomed as protection provided by the law has been refocused on those workers who the underlying public policy was designed to protect.
However, a drawback is that no guidance has been given on exactly what ‘in the public interest’ means and this will be left to the discretion of the employment tribunals. Until the first cases under the new legislation are heard, it is not clear how the courts will approach this issue and we will therefore need to wait and see whether this area of legal protection has been properly tightened.
Good faith: previously, a whistleblower had to show that their disclosure had been made in good faith for it to be protected. This requirement has now been removed.
The thinking behind this is essentially that provided the disclosure is deemed to have been made in the public interest, the reason or motivation of the worker making the disclosure does not matter.
This could mean a worker is protected even if the disclosure was made out of malice or with the intention of personal gain. However, it is not anticipated that this change will have too great an impact nor be abused, as public interest is the main issue.
The law still provides that, if the disclosure is not made in good faith, compensation for the whistleblower can be reduced by up to 25%.
Vicarious liability and victimisation: thecourt of appeal case against NHS Manchester brought by healthcare staff including Jennie Fecitt, one of the authors of this article, as well as the Stafford Hospital case, highlighted the bad treatment that can be suffered at the hands of colleagues as a result of blowing the whistle.
This naturally has a knock-on effect of making potential whistleblowers reluctant to make disclosures for fear of being bullied or harassed by co-workers.
Flowing from the cases mentioned, the final change worthy of note is the introduction of personal liability for “whistleblowing detriments”. Whistleblowers can now bring claims against fellow employees, not just their employer, if they are vicitimised by co-workers for raising concerns. Employers can also be vicariously liable for actions of their staff who subject a whistleblower to “unfair treatment”, bringing the protection in line with discrimination protection under the Equality Act 2010.
As with all areas of vicarious liability, employers will have a defence if they can show that they took all reasonable steps open to them to prevent workers from victimising people who raise concerns.
They will need to show that they have taken steps to ensure whistleblowers are not victimised and that staff understand that any ill-treatment towards whistleblowers will not be permitted. They will therefore need to update the relevant policies and provide training to their staff.
The advantages of this change are threefold:
• It will reassure staff who may have been dissuaded from making a disclosure in the past that if they are ill treated by co-workers as a result of blowing the whistle, they have a route of redress;
• It will motivate employers to introduce or strengthen internal processes to protect whistleblowers, to encourage more whistleblowing internally;
• It should encourage workers to behave appropriately towards each other by supporting those who make protected disclosures, rather than vilifying them.
These changes will hopefully reassure employees that they can raise concerns without fear of reprisals, and give employers a nudge to ensure that all their policies, procedures and staff training are up to date in relation to whistleblowing and its implications.
In practice, we will have to see how tribunals and courts deal with these changes to see whether they are effective. However, in principle, they should give some confidence to genuine whistleblowers that the law is now refocused on offering them more comprehensive protection for standing up and raising issues of true public concern.
Going to court to seek redress should be a last option for all parties. If we are to succeed in delivering safe, compassionate and dignified care, we need to foster an open and transparent culture at all levels within the NHS.
However, until there is a culture of openness and a duty of candour to all who serve patients across the NHS, whistleblowing legislation has to be effective if it is to protect those who raise concerns of patient safety, malpractice and breach of duty of care. A leadership approach in engaging, listening and empowering staff and patients will be critical in creating and sustaining that cultural change within the NHS.
David Walton and Danielle Ayres are solicitors in the employment department of Gorvins Solicitors, Stockport, Cheshire; Jennie Fecitt is senior nurse and lead nurse at Patients First (UK)