Jack Nicholson came to mind this week, as the grizzled Colonel in A Few Good Men – a tale of whistleblowing and reprisals among the Marine Corps at Guantanamo Bay. Private Santiago died mysteriously after two fellow Marines burst into his room and tied him up – two marines who were then tried for murder. Their only hope was their defence lawyer, Tom Cruise. Worse still, there was a motive. Private Santiago had been a trouble-maker. He had been blowing the whistle – writing to the press, congress, anyone who would listen – about doubtful goings on at Guantanamo Bay. (Odd that it doesn’t get shown more). Had they been ordered to carry out the attack – a “Code Red” – to discipline Santiago? It turns out of course that they had, and as in all good movies, the truth came out under cross-examination – although Jack Nicholson still thought Tom Cruise would have difficulty handling it.
Code Red’s are, you may be surprised to learn, not a common feature of employment tribunal cases, but what happens if co-workers take it into their own hands to punish or perhaps just ostracise a whistleblower? If the company does nothing, is it liable? Well, from 25 June 2013, it will be, unless it can show that it took all reasonable steps to prevent this sort of thing.
This is a nice, newsworthy change in the law, but not a measure likely to have a noticeable impact. Employers are liable anyway for the actions of their staff, who can resign and claim constructive dismissal as long as they have the right length of service, so it will really only be new-joiners for whom this makes a real difference, and the more common situation is straightforward pressure from management, rather than colleagues.
Among other changes to the whistleblowing rules however, and the one with by far the biggest impact, is that whistleblowers can no longer claim protection for breaches of their own contract; there has to be a public interest. For years now, the whistleblowing rules have acted not as originally intended, with a worker having a metaphorical whistle to sound the alarm if there is any foul play going on around the field, but more like a personal rape alarm, going off whenever there is any infringement of their personal space. Any act of bullying or harassment, including just being ignored or left out, could be presented as a breach of a legal obligation, and if things continued after a complaint, the worker could claim to be a whistleblower, and bring a claim regardless of length of service. Almost any complaint about poor performance, for example, could be presented as bullying and the victim as a whistleblower. Well, the rape alarms have now been taken away, and only complaints in the public interest will do, and so under the guise of an employee-friendly measure there has been a significant shift in favour of the employer. That’s the truth, as Jack Nicholson might have said.