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Unfair Dismissal And Whistleblowing - New Legislation Takes Effect Today

Unfair Dismissal And Whistleblowing - New Legislation Takes Effect Today

A reminder of the key employment law changes which take effect from today, 25 June 2013 in relation to unfair dismissal and whistleblowing.

From today, an employee can bring a claim for unfair dismissal without any qualifying period of service, where the reason or principal reason for the dismissal is or relates to the employee’s political opinions or affiliation.  This follows on from the decision last year in the European Court of Human Rights in which the Court said that the freedom of assembly (contained in Article 11 of the European Convention on Human Rights) applies to all associations, including those whose views offend, shock or disturb.  That case was brought by an individual who was dismissed after being elected as a local councillor for the BNP.

Listed below are the main changes to the whistleblowing rules. They only apply to disclosures made on or after today:

  • Workers will only be able to claim protection from detriment or dismissal in relation to whistleblowing if they reasonably believe their disclosure is “in the public interest.”  This change will be welcomed by employers as it will prevent most employees from bringing claims which relate only to an alleged breach of their own employment contract. However, care should still be taken in dealing with these situations as this may not prevent employees from claiming that an allegation of discrimination for example, is in the public interest (particularly public sector employees). Watch this space to see how the case law develops!
  • Whistleblowers will no longer have to make the disclosure in “good faith.” This means that even if their primary purpose is to protect themselves, gain advantage in settlement negotiations or cause trouble for the organisation, they would still have protection from detriment or dismissal (providing the other parts of the test under the legislation are met).  However, any tribunal award made to them at a later stage could be reduced by up to 25% to reflect the element of bad faith.
  • Employers can now be vicariously liable for any of their employees who victimise a whistleblower.  This means that employers could be on the hook for hefty compensation claims.  In a similar way to discrimination claims, compensation in whistleblowing cases is uncapped and for detriment claims can reflect an element for injury to feelings as well.
  • Employees can now also have personal liability if they victimise a whistleblower.

Now may be a good time to check your whistleblowing and diversity policies are up to date and communicate any changes to employees.

Claire Scott
Professional Support Lawyer

LChalmers