UK: Enterprise and Regulatory Reform Bill: amendments to whistleblowing, financial penalties on employers, dismissal for political opinion/affiliation

The Government has proposed, and the House of Lords approved, a number of amendments to the Enterprise and Regulatory Reform Bill:  

• The Bill already includes provisions adding a requirement for whistleblowers to be acting "in the public interest" and removing the need for the disclosure to be in good faith (although tribunals will be able to reduce compensation by up to 25% for bad faith).  The latest amendment would make individual workers or agents personally liable for subjecting whistleblowing colleagues to acts of detriment and makes the employer vicariously liable for these acts unless it can show it took all reasonable steps to prevent such treatment.  This would rectify the lacuna identified in the case of Fecitt; once in force employers will need to adopt and properly implement whistleblowing policies and training, in the same way as they do equal opportunities policies and training.The Government has also indicated that it will consider extending whistleblowing protection to job applicants in future, if it is satisfied of the need to do so.  It plans to call for evidence on this as part of a wider review of the whistleblowing legislation in due course.  Meanwhile, Public Concern at Work has set up an "independent Whistleblowing Commission" to examine existing arrangements for workplace whistleblowing and make recommendations for change, due to report in November 2013.
• The Bill included a power for tribunals to impose a fine of between £100 and £5,000 per claimant for aggravated breaches of employment law;  the amendments provide that tribunals must consider an employer's ability to pay before imposing such a fine and remove the minimum of £100 per claimant for multiple claims.
• The qualifying period for unfair dismissal will not apply where the principal reason for dismissal is or relates to the employee's political opinions or affiliation.  This change is to comply with the ECtHR ruling in Redfearn.

The Government has said that it does not intend to make caste discrimination unlawful at this time and will await the report of the Equality and Human Rights Commission into the issue later this year.  It intends to oppose the amendment introduced and agreed in the House of Lords making caste discrimination unlawful.

Acas has confirmed that its early conciliation service, provisions for which are also included in the Bill, will start in April 2014.