84

Legal Focus

JANUARY 2013

Whistle Blowing and the Law UK

According to corporate investigation group Kroll, between June 2011 and May 2012 the FSA received 3,733 reports of whistle blowing through its helpline, 189% higher than the same period three years ago. To explore why such reports have increased so much over recent years, and to look at the effects of the Enterprise and Regulatory Reform Bill that is currently being worked through parliament, Lawyer Monthly speaks to Raj Dhokia, Partner at London law firm, Freedman Green Dhokia. Raj has practised in employment law for over 20 years acting for both employers and employees, and so is well-placed to provide an expert insight into this topical subject.

the Enterprise and Regulatory Reform Bill currently going through parliament is set to change the UK's whistle-blowing legislation, closing a loophole that allows disclosures made in relation to a breach of an employee's own employment contract to become protected. What are your opinions on the reforms?

The loophole was established in Parkins – v- Sodexho Limited (2002) and gave rise to the possibility that almost any grievance raised by an employee might amount to a qualifying protected disclosure. By overturning the decision in Sodexho the reforms will make it difficult for such claims now to be successful in an Employment Tribunal. Employers should be encouraged about the reforms.

What do you think will be the main effects of the reforms?

I do not necessarily see whistle-blowing www.lawyer-monthly.com

claims in the Employment Tribunal reducing as a result of these reforms. The loophole is not being closed altogether. Instead it is being narrowed down so that only a disclosure which “in the reasonable belief of the worker making the disclosure is made in the public interest” will qualify for protection. This will raise questions as to what constitutes “public interest”. For example, employees in regulated sectors (such as the legal profession and FSA) will continue to have arguable public interest claims. An employee in regulated sectors will generally be able to cite a breach of legislation or practise as a public interest argument. In other sectors, I see further utilisation of the anti-bribery and corruption legislation as the basis of a disclosure by an employee.

Courts have generally interpreted the whistle blowing legislation widely and adopted a purposive construction. It will therefore take a brave employer to argue