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Whistleblowers are individuals who have made a protected disclosure. A disclosure will be a qualifying disclosure if the worker has a reasonable belief that the information disclosed shows that a criminal offence, miscarriage of justice, breach of any legal obligation, damage to the health and safety of any individual or damage to the environment will or is likely to occur and the disclosure is in the public interest. A disclosure will also be protected if the information disclosed shows that there has been a deliberate concealing of information about any of the above.
The first protection for whistleblowers was introduced by the Public Interest Disclosure Act 1998, which amended the Employment Rights Act 1996 ("ERA"). The ERA was amended to give protection to whistleblowers from unfair dismissal and unlawful detriment.
Under the ERA the dismissal of an employee will be automatically unfair if the reason, or principal reason, for the dismissal is that the employee has made a protected disclosure. Employees do not need qualifying service for this protection and the tribunals are not restricted by the usual upper limit on compensation
Workers also have the right not to be subject to a detriment (including threats, disciplinary action, loss of work or pay, or damage to career prospects) on the basis that they have made a protected disclosure. Compensation for breach of this right is also uncapped, and assessed on a similar basis to discrimination claims - including awards for injury to feelings.
Since June 2013, employers can also be vicariously liable for the acts of a worker in subjecting the whistleblower to a detriment. The only defence the employer will have is if they have taken all reasonable steps to prevent the detrimental treatment.
Who is protected?
Whistleblowing legislation has previously covered a wide area; affording protection not only to employees but workers also (although only employees can bring a claim for unfair dismissal). The definition of worker has also been given an extended meaning for whistleblowing claims, to give protection to those who would not otherwise be covered. This definition includes non-employees undergoing training or work experience as part of a training course, self-employed doctors, dentists, ophthalmologists and pharmacists in the NHS, agency workers and police officers.
This list has now been extended again to include both student nurses and student midwives. The Protected Disclosures (Extension of Meaning of Worker) Order 2015 has been laid before Parliament and is due to come into force on 6 April 2015
Why extend the definition of worker?
Protection has been extended to student nurses and midwives following a government consultation, during which student nurses and midwives were identified amongst other individuals as individuals who may be in a position to witness some form of malpractice that would be in the public's interest to report.
The government agreed, stating that student nurses should be included, given their "employment-like" relationship with healthcare providers where they are carrying out their work experience.
The government has also clarified that some groups suggested by the public to be given protection were not definitively excluded by the current legislation, such as interns and consultants, and that, following recent decisions of the Supreme Court (Clyde & Co LLP v Bates van Winklehof), members of LLPs were also protected.
Thoughts for employers
The new Order only expressly adds two further groups to whistleblowing protection; however, employers should bear in mind the other comments given in the government's response when dealing with interns and consultants.
A number of additional groups were suggested during the consultation exercise, such as contractors and self-employed individuals employed through Construction Industry Schemes, and although the government will not be making any changes at this point, they have confirmed this area of law will be kept under review with a view to consulting if further changes are considered. Employers should therefore keep abreast of any future consultations, and make sure to treat all workers and individuals they do business with in accordance with whistleblowing protection to make sure, should further changes be introduced, their procedures and practices are already up to scratch.