What will whistleblower reform mean for businesses?

A new law protects whistleblowers.

Government reforms to UK laws protecting whistleblowers came into effect last week, shielding employees for disclosures they believe to be in the public interest and closing a legislative loophole which had allowed disputes over employment contracts to be protected

Legislation has been in place since 1999 to afford protection to employees and some workers who blow the whistle on improper or illegal activities in the workplace. Protection is afforded to those who disclose information that they reasonably believe shows wrongdoing (eg the commission of a criminal offence or breach of a legal obligation), when that disclosure is made to a permitted category of person, such as the worker’s employer. Importantly, and although this was not specified in the legislation, the protection implied that the disclosure should be made in the public interest.

However, both the legal profession and employers were surprised when the courts decided to afford whistle-blower protection to employees who complained about breaches of their own employment contracts. The UK government sought to address this apparent loophole by passing legislation to refine the scope of whistle-blower protection.

The law was amended by the Enterprise and Regulatory Reform Act 2013, with relevant aspects applying to disclosures made on or after the 25th.

Disclosures are now only protected in cases where a worker or employee discloses information which they reasonably believe to be in the public interest. The important distinction is that the disclosure does not need to be in the public interest, but that the whistle-blower must have a reasonable belief that it is. The whistleblower will also no longer be required to make the disclosure in good faith, although they may find it very difficult to satisfy the new "public interest" test if they are making a disclosure in bad faith. However, if a disclosure which satisfies the "public interest" test is made in bad faith, for example, if an employee is motivated by malice rather than a desire to right a wrong, then the Employment Tribunal can reduce any compensation awarded to a whistle-blower by up to 25 per cent.

The legislation does not define the "public interest", and it will fall to the courts to debate and define what constitutes the “public interest” in this context. Employees may consider (and hold a reasonable belief) that disclosing information concerning breaches of their own employment contract is in the “public interest”, intending to ensure that similar breaches do not happen to other employees. If the courts interpret the definition broadly, it may undermine the purpose of the changes.

Conversely, to take a very narrow approach to the definition could reduce the effectiveness of any whistleblower protection.

It is also automatically unfair for an employee to be dismissed where the reason or principal reason for the dismissal is that he or she has made a protected disclosure, even in cases where there are other issues, such as with the employee’s conduct or performance, and they are protected from being subjected to any detriment because they have made a protected disclosure. Furthermore, protection against unfair dismissal applies to whistle-blowers regardless of whether or not they have completed the two years’ service which is normally necessary to bring an unfair dismissal claim against an employer.

The protection given to whistle-blowers also removes the normal, statutory cap on compensation for unfair dismissal that can be awarded if their claim is successful. In addition, the government has made it clear that protection extends to retaliation or detrimental treatment of whistle-blowers at the hands of their colleagues, as well as their employer.

In an environment where businesses are facing increasing regulation, such as in financial services and since the introduction of the Bribery Act 2010, whistleblowing may become more prevalent and should be encouraged as an important means of monitoring compliance. The recent changes help to restore the focus of the legislation on issues which have implications for the public as a whole, while providing protection for whistle-blowers. It will be interesting to watch how the courts develop this area of law.

This piece first appeared on economia.

James Cox is a partner at Gibson, Dunn & Crutcher.

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25 times people used Brexit to attack Muslims since the EU referendum

Some voters appear more interested in expelling Muslims than EU red tape.

In theory, voting for Brexit because you were worried about immigration has nothing to do with Islamophobia. It’s about migrant workers from Eastern Europe undercutting wages. Or worries about border controls. Or the housing crisis. 

The reports collected by an anti-Muslim attack monitor tell a different story. 

Every week, the researchers at Tell Mama receive roughly 40-50 reports of Islamophobic incidences.

But after the EU referendum, they recorded 30 such incidents in three days alone. And many were directly related to Brexit. 

Founder Fiyaz Mughal said there had been a cluster of hate crimes since the vote:

“The Brexit vote seems to have given courage to some with deeply prejudicial and bigoted views that they can air them and target them at predominantly Muslim women and visibly different settled communities.”

Politicians have appeared concerned. On Monday, as MPs grappled with the aftermath of the referendum, the Prime Minister David Cameron stated “loud and clear” that: “Just because we are leaving the European Union, it will not make us a less tolerant, less diverse nation.”

But condemning single racist incidents is easier than taking a political position that appeases the majority and protects the minority at the same time. 

As the incidents recorded make clear, the aggressors made direct links between their vote and the racial abuse they were now publicly shouting.

The way they told it, they had voted for Muslims to “leave”. 
 
Chair of Tell Mama and former Labour Justice and Communities Minister, Shahid Malik, said:

“With the backdrop of the Brexit vote and the spike in racist incidents that seems to be emerging, the government should be under no illusions, things could quickly become
extremely unpleasant for Britain’s minorities.

“So today more than ever, we need our government, our political parties and of course our media to act with the utmost responsibility and help steer us towards a post-Brexit Britain where xenophobia and hatred are utterly rejected.”

Here are the 25 events that were recorded between 24 and 27 June that directly related to Brexit. Please be aware that some of the language is offensive:

  1. A Welsh Muslim councillor was told to pack her bags and leave.
  2. A man in a petrol station shouted: "You're an Arabic c**t, you're a terrorist" at an Arab driver and stated he “voted them out”. 
  3. A Barnsley man was told to leave and that the aggressor’s parents had voted for people like him to be kicked out.
  4. A woman witnessed a man making victory signs at families at a school where a majority of students are Muslim.
  5. A man shouted, “you f**king Muslim, f**king EU out,” to a woman in Kingston, London. 
  6. An Indian man was called “p**i c**t in a suit” and told to “leave”.
  7. Men circled a Muslim woman in Birmingham and shouted: “Get out - we voted Leave.”
  8. A British Asian mother and her two children were told: "Today is the day we get rid of the likes of you!" by a man who then spat at her. 
  9. A man tweeted that his 13-year-old brother received chants of “bye, bye, you’re going home”.
  10. A van driver chanted “out, out, out”, at a Muslim woman in Broxley, Luton
  11. Muslims in Nottingham were abused in the street with chants of: “Leave Europe. Kick out the Muslims.”
  12. A Muslim woman at King’s Cross, London, had “BREXIT” yelled in her face.
  13. A man in London called a South Asian woman “foreigner” and commented about UKIP.
  14. A man shouted “p**i” and “leave now” at individuals in a London street.
  15. A taxi driver in the West Midlands told a woman his reason for voting Leave was to “get rid of people like you”.
  16. An Indian cyclist was verbally abused and told to “leave now”. 
  17. A man on a bike swore at a Muslim family and muttered something about voting.
  18. In Newport, a Muslim family who had not experienced any trouble before had their front door kicked in.
  19. A South Asian woman in Manchester was told to “speak clearly” and then told “Brexit”. 
  20. A Sikh doctor was told by a patient: “Shouldn’t you be on a plane back to Pakistan? We voted you out.”
  21. An abusive tweet read: “Thousands of raped little White girls by Muslims mean nothing to Z….#Brexit”.
  22. A group of men abused a South Asian man by calling him a “p**i c**t” and telling him to go home after Brexit.
  23. A man shouted at a taxi driver in Derby: "Brexit, you p**i.”
  24. Two men shouted at a Muslim woman walking towards a mosque “muzzies out” and “we voted for you being out.”
  25. A journalist was called a “p**i” in racial abuse apparently linked to Brexit.