Blowing time on wrongdoing – does the whistleblowing legislation go far enough?

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Posted in:Banking and Finance, Corporate and Commercial, HR and Employment, Litigation|October 17, 2014 | Join the mailing list

For the last fifteen years, there have been laws in place giving some level of protection to people who blow the whistle on wrongdoings and are then penalised by their employer for doing so.

The Public Interest Disclosure Act 1998 (which came into effect one year later in 1999) provides this protection and workers who make “protected disclosures”, as defined in that Act, and are then dismissed or subjected to detriment as a consequence can bring
claims against their employer in the Employment Tribunal. The compensation awarded in such cases can be substantial, as there’s no statutory cap on the amount which the Tribunal has the power to award, and as well as having to pay out money to the person who
brought the claim, the cost to the employer in adverse publicity can also be very significant.

Since 2010, there have also been laws in place protecting workers who don’t comply with clauses in their contracts of employment barring them from discussing levels of pay with colleagues and others. If a worker doesn’t comply with such a pay secrecy clause
in their contract and their reason for not doing so is to find out whether pay levels are linked to having a “protected characteristic” under the Equality Act 2010, then if the worker is punished by their employer for not complying with the clause, they can
bring a claim in the Employment Tribunal for compensation. The “protected characteristics” covered by the Equality Act are wide ranging and consist of age, disability, gender reassignment, marriage and civil partnership, pregnancy and maternity, race, religion
and belief, sex and sexual orientation.

However, workers need to tread very carefully before making disclosures about known or suspected wrongdoing and before breaching clauses in their contracts which prohibit discussions about levels of pay.

The laws on whistleblowing contained in the Public Interest Disclosure Act are very complex and it’s important that workers making disclosures have a reasonable belief that those disclosures are in the public interest and ensure that they are made to one of
the prescribed persons or bodies referred to in the Act.

Breaches of pay secrecy clauses will only be protected if the breach is linked to unearthing unlawful discrimination and there is no general protection for someone breaching such a clause where the breach has no link to a “protected characteristic”. The fact
that different levels of pay may simply be unfair is not enough.

All of this poses the question as to whether the protection provided by the law goes far enough. Given the wrongdoings which have come to light in recent times in areas as wide ranging as banks and schools, are we satisfied that the legislation we have in place
gives sufficient protection to the honest and well intentioned whistle blower? On the other hand, are we satisfied that employers (as well as other workers) have enough protection from those who make allegations of misconduct, but do so for ulterior motives
or without first making reasonable checks that what they are alleging is true? It’s a difficult issue all round, and while these complicated laws certainly provide more work for lawyers, many will feel, with good reason, that that’s not the point.                   

For more information about
& any of the above, or for practical commercial advice on this or any other aspect of employment law, please contact
Nigel Crebbin
of the Berg Employment Team on 0161 833 9211 or email him at
. Follow Berg’s employment team at Twitter:

(The information and opinions contained in this article are not intended to be comprehensive, nor to provide legal advice. No responsibility for its accuracy or correctness is assumed by Berg or any of its partners or employees. Professional legal advice should
be obtained before taking, or refraining from taking, any action as a result of this article.)


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