It has of course been the health sector rather than local government that has borne the brunt of recent bad publicity about whistleblowing.
However, local authorities do need to take a close interest in this publicity, learn lessons and prepare for the changes proposed in the Enterprise and Regulatory Reform Bill.
The proposals in the bill both extend and limit whistleblowing protection. A proposed limitation is to require that a disclosure has to be in the public interest - or at least the worker making the disclosure has to reasonably believe it to be so. Whilst many protected disclosures already fall within this limitation, there are a number, particularly concerning allegations of a breach of contract, which do not and are only of potential interest to the person making the disclosure. The proposed change tries to stop such issues falling within the additional protections provided to whistleblowers.
The most publicised proposed change though is to remove the “good faith” requirement. Whilst this does have the potential of increasing instances where workers rely on whistleblowing protection, it is unlikely to open the floodgates. A worker will still be required to reasonably believe that the disclosure is true. It will still be possible to take action against malicious complaints where there is no such reasonable belief.
Even under current legislation it would be unlikely that an employer would take action against a whistleblower who had a reasonable belief that their disclosure was true, but where the employer felt that their disclosure was not made in good faith. Also, given the new proposal that the disclosure has to be in the public interest, why try to identify the motive for making the disclosure as long as there is a reasonable belief in its truth?
Most if not all local authorities will have whistleblowing procedures in place. Whilst it is always important to keep these under review, there is no requirement yet to update these to take account of the new bill. The functions of authorities do of course include areas where whistleblowing protection is most important; care of vulnerable adults, education and safeguarding of children and public finance.
Compromise agreements are used by local authorities in order to settle actual and potential employment claims. It is important that authorities review their standard terms and consider whether these could be criticised as trying to gag employees. Do authorities provide for an exception in their terms, so ensuring that employees and former employees are still able to make protected disclosures?
It is also recommended that, where an authority considers taking disciplinary steps against a whistleblower on the basis that the claimed protected disclosure may be inappropriate, there should be an emphasis on whether there was a reasonable belief in the truth of the disclosure, rather than whether the disclosure was made in good faith.
Mark Leach is Employment Partner at national law firm Weightmans LLP