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Whistleblowing: UpdateBack

Whilst Whistleblowing has been an increasingly difficult area for employers over recent years, a recent case from the Employment Appeal Tribunal gives some comfort.

For many years a worker had to demonstrate ‘good faith’ in making a whistleblowing disclosure and this helped to protect employers from employees who were raising allegations simply as a means of revenge.  Legislative changes some years ago removed the requirement for good faith when deciding liability.  This meant that if an employee made a whistleblowing claim that satisfied the other criteria, the fact that it was brought in bad faith did not necessarily mean that the claim could not succeed against an employer.  The issue of good faith now is relevant only to remedy (i.e. how much the employee might be awarded) rather than liability itself.

A case recently however has re-emphasised that, even in the present legislation, there is still the requirement that a worker believes that the disclosure is made in the public interest for it to be successful.  In Parsons v Airplus International Ltd the Employment Appeal Tribunal has made clear that where an employee only had her own self-interest in mind when making disclosures, rather than any belief that they were actually being made in the public interest, that was not protected.

It is possible that a disclosure made in a worker’s self interest may also be in the public interest and thereby protected, but in this case there was a finding that an employee had no genuine belief that it was in the public interest and so the claims failed.  The fact here that the employee hypothetically believed that they might have been in the public interest did not help her, when in fact she did not hold that belief at the time.

The case is good news for employers and reminds us that, although the good faith element in the previous legislation can no longer be relied upon, the requirement for public interest in the disclosure to some extent mitigates against an employee making disclosures for purely selfish reasons.

Motor Industry Legal Services

Motor Industry Legal Services (MILS Solicitors) provides fully comprehensive legal advice and representation to UK motor retailers for one annual fee. It is the only law firm in the UK which specialises in motor law and motor trade law. MILS currently advises over 1,000 individual businesses within the sector as well as the Retail Motor Industry Federation (RMI) and its members.

Posted by Sue Robinson on 05/01/2018