Government sledgehammer cracks apart employment protection for whistle-blowers.

In the light of the ongoing Jimmy Savile controversy, the irony of new government legislation that will actually weaken employment protection for workplace ‘whistle-blowers’ has not been lost on partner and employment law specialist Paul Statham… 

Every day brings new and escalating allegations in the media about the abusive conduct of Jimmy Savile. How he appears to have sexually harassed work colleagues, patients and residents of hospitals and care homes where he volunteered, and members of the public with whom he came in contact during the course of his employment with the BBC.

His predatory activities with young girls and patients appear to have been reported by the victim, or witnessed on many occasions. But the common reaction seems to have been that no one would believe the story because of who he was. In particular his work for charity seems to have made him ‘too big to fall’, despite all the rumours.

So it’s somewhat ironic that the Government has announced its intention to pass legislation that will make it even easier for any future ‘Savile’ to escape detection. Because a clause in the Enterprise and Regulatory Rights Bill will require whistle-blowers to satisfy a ‘public interest’ test to receive employment protection from detriment and/or dismissal.

It’s essentially an effort to reverse the effects of a previous court decision (Parkins v Sodexho) that watered down the public interest purpose of the Public Interest Disclosure Act (PIDA). The Government’s rather clumsy solution to this puts the onus on the whistle-blower to decide if a disclosure is ‘in the public interest’, which may be very hard to determine. And many organisations – in particular, Public Concern at Work – have suggested that this amendment is a retrograde step that will inhibit whistle-blowing in respect of wrongdoing at the workplace.

Imagine if you were a nurse at Stoke Mandeville or Broadmoor and you witnessed your major fundraiser in a patient’s room when there might be an innocent explanation (as it appears Jimmy Savile had access to all areas of the hospitals). Do you risk your employment by reporting your suspicions, or do you keep your head down?

Most commentators agree that the decision in Parkins v Sodexho was wrong, and should be reversed to prevent abuse of whistle-blowing legislation in, for example, bankers’ bonus cases. Or where an employee doesn’t have the requisite continuous service. But not here.

And anyway, there is a far simpler and more sensible solution than that the Government is proposing: namely to exclude from PIDA protection those claims in respect of the employee’s own contract of employment.

So once again the Government’s apparent reluctance to take any notice of expert responses to the consultation process leads them to create more problems than they solve…