| 
Major Proposed Changes to Whistleblowing Under the Employment Rights Bill
Adrian Fryer
Recent proposed amendments to the Employment Rights Bill includes sweeping reforms to the UK’s whistleblowing regimen. While these proposals are not yet backed by the government and are therefore unlikely to pass, they do offer significant changes, which if passed, would have meaningful implications.
Please see below a list of the proposed changes:
- The proposal aims to simplify the list of what could amount to a “qualifying disclosure”, while also expanding the definition to cover various public interest concerns, including mismanagement of public funds; abuse of authority; or anything else set out in Regulation.
- Currently, a disclosure is “protected” if the whistleblower reasonably believes the disclosure to be in the public interest. The proposed amendment would mean that the disclosure must actually be in the public interest. This subtle change would create a more objective standard when reviewing whistleblowing and make it much more difficult for workers to show that they have effectively “blown the whistle”
- Perhaps one of the most ambitious changes in their proposal would be the establishment of the “Office of the Whistleblower”, to be created within one year of the Employment Rights Bill gaining Royal Assent. The principal duty of the Office will be to protect whistleblowers and have oversight of the process of whistleblowing.
This independent body would be tasked with a wide-ranging remit to:
- set minimum standards for whistleblowing policies, procedures and reporting structures;
- monitor and enforce compliance with those standards;
- provide an independent disclosure and reporting service;
- provide support for whistleblowers;
- prevent the use of NDA’s and confidentiality agreements, except where needed for commercial confidentiality or to provide whistleblower anonymity; and
- bring actions for the offence of intentionally or recklessly submitting a whistleblower to detriment; including action notices, redress orders and interim relief orders, which may be appealed to the First-tier Tribunal.
- The proposed amendments also seek the introduction of a new clause, requiring the Secretary of State to establish regulations that strengthen whistleblower protections. These regulations would:
- broaden the grounds for unfair dismissal by expanding the circumstances under which an employee is deemed to have been unfairly dismissed following a protected disclosure; and
- impose a duty on certain employers to take reasonable steps to investigate protected disclosures. This obligation would apply to employers that meet any of the following criteria:
- employ 50 or more staff;
- have an annual turnover or balance sheet total of £10 million or more;
- operate within the financial services sector; or
- are otherwise vulnerable to money laundering or terrorist financing risks.
- Finally, one of the key amendments proposed would introduce a new offence: it would become an offence for a person to intentionally or recklessly submit a whistleblower to detriment. This offence would carry significant financial penalties. For individuals, the maximum fine would be 10% of their gross annual income, capped at £50,000. For other entities, the fine could be up to 10% of their annual global turnover. It is not clear if this offence is a criminal offence, as the Employment Tribunal would be an unusual location to hear a criminal matter.
What’s Next?
These proposals are still under consideration and may not become law. But they highlight a potential shift toward stricter regulation and stronger whistleblower protections.
Stay tuned for updates as the Employment Rights Bill progresses.
Contact our Head of Employment, Adrian Fryer.