Wind of Change for Whistleblowers

Last week saw the introduction into law of changes to the whistleblowing test set out in the Employment Rights Act 1996. Whilst the whistleblowing laws were introduced by separate pieces of legislation known at the Public Interest Disclosure Acts, curiously, whistleblowers were never required to demonstrate that the matters on which they raised the alarm were “in the public interest”.

This anomaly has now been addressed. From now on, any worker who intends to blow the whistle and make a qualifying or protected disclosure, must be able to demonstrate that the matter of concern is in the public interest. Rather unhelpfully for employers, however, the new laws give no definition as to what would be regarded as being in the public interest in such cases.

What do I need to know?

It makes sense to review your current polices and procedures relating to whistleblowing at work to ensure that the requirement to show the disclosure is in the public interest is included from now on.

Workplace Politics

The requirement for employers alleging unfair dismissal on the ground that they were dismissed for reasons relating to their political opinion or affiliation has now been removed.

As a consequence, employees benefit from statutory protection against unfair dismissal for reasons connected with their political beliefs immediately on commencement of employment.

What do you need to know?

Be mindful when carrying out the dismissal process involving any employee with less than two years’ service of the potential of the employees to claim that their dismissal was due to their political opinions or affiliation. This catch-all provision has the capacity to lead to many claims from individuals who have less than two years’ service.

We would always recommend a clear paper trail and process (where appropriate) to demonstrate the real reason for dismissal in such cases, be it conduct, performance or redundancy.

Caught on Camera

In a case that surprises some legal commentators, the Employment Appeal Tribunal held recently that an employer’s use of covert video surveillance (obviously taking place without the knowledge or consent of the employee) did not affect the reasonableness or fairness of the investigation into the employee’s misconduct and so overturned an employment tribunal’s finding of unfair dismissal.

At the Employment Tribunal Hearing (first instance) the employee argued that they had a right to privacy and that this right could not be trampled by an employer taking covert video surveillance in order to investigate the employee’s wrongdoing. The EAT disagreed. Employees suspected of defrauding their employer (for example) would have no right to privacy.

The decision is surprising because the law is clear that a disciplinary investigation which is considered to be outside the range of reasonable responses would almost certainly lead to a finding of unfair dismissal. Many thought that it would follow that the use of covert and probably illegal techniques to obtain video evidence would be considered outside the range of reasonable responses (the logic being that a reasonable employer would not break the law in order to gather evidence).

The EAT appears to give a far greater weight to the overriding objective to ensure that justice is done to all parties and so was willing to tolerate the use of covert video evidence and regard it as within the range of reasonable responses on the facts of this particular case.

What do you need to know?

This case does not present employers with a charter to carry out “stake-outs” outside the workplace for all or any employees suspected of misconduct! It does however confirm that in appropriate cases employers would not be acting outside the range of reasonable responses by using covert evidence. Before taking such steps, we would always recommend our clients to take careful legal advice. Evidence-gathering of this kind should be a last resort.

Settlement Agreements

New legislation enabling confidential pre-termination settlement agreements is expected to come into force this Summer.

ACAS has produced its new statutory code of practice on settlement agreements which contains a number of important differences from the original draft version, including:

• Omitting the requirement that the initial termination settlement offer must be in writing;
• Omitting the template letters;
• Inserting a requirement that an employer must have a minimum of ten calendar days to consider any offer;
• Adding an expectation that employees should be allowed to be accompanied at settlement meetings.

We will update you on this change to the law (primarily aimed at making settlement agreements easier to introduce without risking the fact of those discussion being used in evidence against an employer if negotiations break down and an employment tribunal follows).

In the meantime, you may benefit from taking a look at the code of practice which broadly represents, we think, how the scheme will operate.