Understanding the ‘Good Faith’ Legislation in Whistleblowing

Whistleblowing at work is vital for exposing wrongdoing, yet it comes with its complexities, particularly when it is questioned whether a disclosure was made in ‘good faith’. The good faith legislation plays a significant role in whistleblowing claims, affecting both the whistleblower and the employer. Below we have put together some essential whistleblowing advice, focusing on how the good faith requirement impacts whistleblowing claims. 

The Role of ‘Good Faith’ in Whistleblowing

In the context of whistleblowing, ‘good faith’ refers to the intention behind the whistleblower’s actions. It suggests the disclosure of information should be made with honest intentions, primarily aimed at addressing the wrongdoing, rather than for personal gain or out of malice towards the employer. Employers often challenge whistleblowing claims by questioning the reasoning behind them. They may argue that the whistleblower had ulterior motives, such as personal grievances, casting doubt on the legitimacy of the claim. 

This scrutiny of the whistleblower’s motives can be a significant hurdle in whistleblowing cases, as proving good faith involves demonstrating a lack of personal bias. Not to mention, this aspect of whistleblowing claims underscores the need for whistleblowers to be clear and transparent about their reasons for reporting wrongdoing from the outset, as any hint of personal animosity can weaken the perceived integrity of their claim.

Common Defences Employers Use

When they are on the receiving end of a whistleblowing claim, employers often resort to specific strategies to defend their position. These include;

  • Discrediting the Whistleblower – Employers might attempt to argue that a whistleblower was treated less favourably due to other factors. This could involve claims that the whistleblower was difficult to work with, had poor performance or was unpleasant to colleagues and management. They might also delve into the whistleblower’s past employment history to find instances of misconduct or disciplinary action, using these to paint a negative picture of the whistleblower’s character.
  • Challenging the Disclosure – They may also argue that what was reported does not constitute a disclosure of “information” or that the whistleblower lacked a reasonable belief in the disclosures made. In this defence, employers may scrutinise the specifics of the information disclosed, questioning its relevance or accuracy to the alleged wrongdoing. They may also challenge how the information was disclosed, arguing that it was not communicated to a prescribed person or within a suitable time frame.
  • Public Interest Debate – Employers might claim that the disclosure was not made ‘in the public interest’, questioning the motives behind the whistleblowing. This involves an argument that the reported issue does not impact the wider community or that the whistleblower’s primary intent was not to benefit the public but to serve a personal agenda. The employer might also argue that the issue raised was trivial or already well-known and did not warrant whistleblowing.

The Challenge with ‘Good Faith’

The requirement of good faith in whistleblowing can be contentious. While many employment law specialists advocate for it to end, arguing that it complicates the process and can be misused to discredit genuine claims, it remains a part of employment law. Employers frequently use this legislation to refute whistleblowing claims, particularly when they suspect the claim is driven by personal vendettas against the business or specific individuals within it. 

This ongoing debate highlights the delicate balance between protecting the interests of a business and ensuring genuine concerns are heard and addressed. For whistleblowers, this means carefully considering how their actions and motivations might be perceived, not just by their employer, but by all parties involved. Understanding this perspective is crucial in preparing a whistleblowing case that withstands scrutiny under the good faith requirement and effectively communicates the intent to serve the public interest.

Preparing for a Whistleblowing Claim

For employees considering a whistleblowing claim, understanding the importance of disclosing wrongdoing in good faith is crucial. It is advisable to;

  • Reflect on Motivations – Before making a disclosure, ensure that your motives align with exposing a criminal offence, miscarriage of justice, damage to the environment, health and safety violation or failure to comply with a legal obligation for the right reasons. Carefully consider your intentions to ensure they are rooted in a desire to correct a wrong or protect the public. This self-assessment is vital, as it can help clarify your objectives and strengthen your position against any allegations of malicious intent.
  • Seek Professional Advice – Consulting with specialists who can provide whistleblowing advice is vital. They can help assess the strength of your whistleblowing claim and prepare you for potential defences raised by employers. Experts can offer insights into the complexities of legal frameworks and suggest the best course of action. Their experience can be invaluable in building a robust case.
  • Document Everything – Keep a detailed record of the wrongdoing and your steps in reporting it. This can be crucial in demonstrating your good faith intention. Documenting the process includes maintaining copies of all communications, noting dates and details of incidents, and keeping track of any responses from the employer. This evidence will be essential in substantiating your claim and showing that your disclosure was made with the intent of addressing genuine concerns.

Get Some Advice About a Whistleblowing Claim 

Navigating a whistleblowing claim requires a good understanding of the Employment Rights Act 1996 and the concept of ‘good faith.’ Whistleblowers must be prepared for the challenges posed by employers’ defences and ensure their actions are genuine. Seeking professional guidance and carefully considering the implications of your actions are key steps in successfully navigating blowing the whistle at work.

Whether you are an employee contemplating blowing the whistle or you have suffered detriment due to blowing the whistle, Damian McCarthy is here to help. With over two decades of experience, Damian will guide you through the difficulties that you will face and get you results. He will be committed to your case and has achieved outstanding results in some very difficult cases. Damian has acted as a whistleblower himself and exposed corruption at the highest levels, so he understands what the repercussions can be like for a whistleblower. To speak to Damian about your whistleblowing claim, get in touch today.