Incentivised Whistleblowing: Will it make a difference?
Employment lawyers across the UK will have to consider what the effect of incentivised whistle blowing could have on their workload. As there are murmurings that the Government is potentially looking to introduce some financial reward for successful whistle blowing. At present there is no financial reward for an employee to report any complaint to an outside body such as the police, media or some other governing body. In return there is often great risks for an employee who does go that extra mile and make a protected disclosure (as whistle blowing is known in the legal world), often they may risk losing their job or have to go through the stress of a lengthy investigation.
Under the Public Interest Disclosure Act 1998, Employees are meant to be protected if they make a protected disclosure either internally or to the appropriate external authority. So if they are dismissed or suffer a detriment because of this disclosure they are able to make an unfair dismissal claim and a whistle blowing claim at the same time. This will result in potentially being successful at tribunal and unlike other unfair dismissal claims there is no cap on the amount of compensation that the Claimant can receive.
The argument for this reward system is that it would hopefully have a knock on effect on the companies itself. They should hopefully have a better approach towards implementing compliance programmes and encourage companies to self-report corruption to avoid whistle blowing allegations.
The problem being that hoping the general public will just do what is right and report wrong doing is just too idealistic in the main. The risks will presently outweigh the reward for doing so and hence why financial reward and possibly even greater protection is in order.
Recent Changes to Whistle Blowing and Tribunal Claims
There have been recent changes to the law regarding whistle blowing (on top of the proposed incentivising of Whistle blowing) which are as follows:
-There has to be a public interest reason for the disclosure. This prevents employees whistle blowing about minor breaches in their contracts and trying to use that as a means of protection if they were dismissed and took their employer to Tribunal.
-Another area employment lawyers should keep an eye on is the alteration towards the good faith section of whistle blowing. A whistle blowing allegation no longer needs to be made in good faith however if the Tribunal goes on to find that it has been made in bad faith then the award can be reduced by up to 25%.
-The final change is that employers will be vicariously liable for any victimisation an employee suffers from other employees if they whistle blow about the organisation.
Will it work?
There was a report published this year which suggests that very few whistleblowers actually raise the concern externally and this is what they obviously want to improve. If that is then compared with the US where there is already financial rewards in place, the difference is outstanding.
Since 1986 when guaranteed awards for whistle blowing was confirmed there have been more than 400 cases brought each year compared to 6 when it was discretionary within the US and it has brought in about $50 billion to date.
There has also been a surge of whistle blowers with regard to lost tax revenue which has led to the recovery of billions. Again all because there are now guaranteed rewards rather than discretionary.
Further information about these can be found here.
So if it has such an effect in the US, it is likely that there will also be significant impact upon the level of whistle blowing here in the UK.
What it will mean for employment lawyers?
With increased whistle blowing comes a greater chance of an employee being dismissed or suffering a detriment because of whistle blowing which has been performed. The fact that the compensation for whistle blowing is uncapped will also make claims attractive both to the claimant and to the employment lawyers themselves. As long as they are willing to do the hours the rewards could be substantial.
If you have performed a protected disclosure to your employer or to an external agency and have suffered consequences because of it; be it dismissal, victimisation or harassment. Please do not hesitate to contact our friendly team on 0800 014 8727 where we will be able to assess your case and advice you on whether your case is one we can assist with on a no win no fee basis.