Stuart Neilson explains new changes to whistleblowing laws.
The construction industry employs more than 2 million workers with an estimated 63,000 having had an accident in 2011/2012. Despite this, whistleblowing calls from the construction industry, as recorded by the Public Concern at Work advice body, only account for 2% of the total number of calls received.
On the surface it may look as though concerns about workplace safety procedures are few and far between, but digging a bit deeper suggests it is more a lack of awareness on the part of employees on how to “speak up”. And the CIOB’s corruption survey shows that more than half of the respondents (54%) were not aware of whistleblowing procedures.
“Speak up” policies for highlighting bad practice and illegal activities should have been in company handbooks since whistleblowing legislation was brought in in 1998 (under the Public Interest Disclosure Act). Yet the lack of calls suggests a lack of transparent and communicated policies by employers.
Whistleblowing legislation has historically allowed employees to raise concerns about the workplace environment or practices, yet be fully protected from loss of job or harassment.
Ironically, the old legislation made no provision for complaints to be made with public interest in mind, resulting in claims motivated by personal gain.
To protect employers more, amendments to the law were made in June this year, with a clear provision that claims must now be made in the public interest before any protection from detriment or dismissal can be obtained. While no guidance has been given as to what constitutes “public interest”, protection will be granted as long as the claimant reasonably believes it to be.
For business owners, the scope for illegal claims has now been narrowed, and an opportunity has been created for companies to revise their current policies and make sure they are in line with the most recent changes.
In a sector that is rife with health and safety issues, companies and business owners now have a platform from which to promote employee awareness and proactively encourage a culture where employees will speak up if they have a concern that may endanger themselves or other members of the workforce. For employees, it outlines what protection is there for them should they need to take another step, having spoken up to find their concerns falling on deaf ears.
However, in bolstering the public interest aspect, employers need to be aware that a crucial protective clause, which had previously called for all claims to be made in good faith to reduce claims driven by malice or personal grievance, has been removed. The argument for this is that if a disclosure is made in the public interest, then the motivation for such a disclosure shouldn’t matter.
Again, this significant change to the law should act as the impetus for employers to not only amend their policies in document form, but also change or update the way they communicate this to staff. By alerting all employees to the company procedures, employers can ensure they are the first port of call for such disclosures.
The third and final motivator for companies to act on these new amendments is the vicarious liability element to the legislation. Where an employee suffers a detriment for whistleblowing, the employer risks being held liable for the disclosure.
The best way of avoiding such a liability is for the employer to be able to demonstrate that they have taken reasonable steps to prevent the need for an employee to blow the whistle.
The new amendments should be seen as a timely amnesty – a chance for companies with lax policies to get them back on the right track. They are an opportunity to blow the whistle on out-dated policies and poor communication, and instead blow the trumpet for staff safety and the company’s reputation.
Stuart Neilson is a partner specialising in employment law at Pinsent Masons
