Whistleblowing reform on its way

  • David Harris
  • Thursday, October 3rd, 2019

The All-Party Parliamentary Group (APPG) has recommended an extensive overhaul of whistleblowing legislation, including the creation of a legal definition for the term ‘whistleblower’. The APPG set out 10 recommendations for change, which experts said would impose significant obligations on organisations of all types.

Whistleblowing claims can be complicated to defend and if your organisation is faced with a whistle blowing allegation it is recommended that you seek specialist, professional legal advice before responding.

 

What is the current law on whistleblowing?

Protection for whistleblowers was introduced by the Public Interest Disclosure Act 1998 (“PIDA”), amending the Employment Rights Act 1996, which prevents employees and workers from suffering a detriment if they have made a protected disclosure. The definition of “worker” for the purposes of whistleblowing protection is broad but requires some kind of working relationship, so does not encompass other stakeholders in a business or members of the public.

The whistleblower must have a reasonable belief that there has been a wrongdoing, which includes criminal offences, breaches of a legal obligation or a danger to health and safety. The whistleblower must also have a reasonable belief that making the disclosure is in the public interest, which is intended to avoid purely personal complaints being caught by whistleblower protection. Dismissals due to whistleblowing are automatically unfair.

 

APPG Report

The APPG’s report suggests that there are two recurring problems for whistleblowers: inaction and retaliation, including disciplinary action, isolation or pressure to sign non-disclosure agreements. Of those surveyed, many had faced both outcomes, sometimes within hours of raising the issues. Alarmingly, only 3% of people surveyed said they felt “very supported” after raising their concerns.

Some whistleblowers said they felt frustrated and discouraged from further reporting due to the delay in action and their exclusion from follow-up actions. Understandably, whistleblowers will want to know the outcome of their concerns, however there is no obligation under the current law to involve the whistleblower in any action taken.

The report also focusses on the effects on whistleblowers. The most immediate effect was on people’s careers, with some whistleblowers reporting that they felt forced out of their job, either because of the working environment, or because of a lack of trust in senior management, which is a common cause of a constructive unfair dismissal claim. There were many reports of people developing mental health issues as a result of retaliation.

The 10 recommendations in the report included focusing the legal definition of whistleblowing on the harm, or risk of harm, to the public. The APPG said a mandatory internal and external reporting mechanism should be implemented and recommended the establishment of an Independent Office for the Whistleblower as a regulatory body.

The APPG also recommended reviewing compensation for whistleblowing and the barriers to justice; banning non-disclosure agreements (NDAs) in whistleblowing cases and introducing a better regulatory framework.

The recommendations would require changes to the Public Interest Disclosure Act 1998 (PIDA) which protects whistleblowers from detrimental treatment by their employer. 

One of the issues which the government hasn’t specifically addressed in its announcements about NDAs is the question of whether the definition of whistleblowing goes far enough, for example, protecting workers who might raise concerns which may not amount to a criminal offence.

The report follows the recent announcement by the UK government of new legislation which will stop employers using NDAs to prevent individuals from disclosing information to the police, regulated health and care professionals or legal professionals.

 

Author
David Harris, Managing Partner & Founder
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