Whistleblowing – an impending storm or winds of change?

In a political era dominated by headlines about the relationship between the UK and E.U, other significant legal and political changes can often fly under the radar. Yet, the development in the protection of whistleblowers is one which businesses should be aware of.

The All Party Parliamentary Group

During Summer 2018, the U.K Parliament established an ‘All Party Parliamentary Group’ (APPG) on whistleblowers in the wake of the Gosport Memorial Hospital scandal with the aim to provide stronger protection for whistleblowers. This was after a 2017 inquiry found that more than 450 patients died between 1987 and 2001 after being prescribed dangerous doses of pain-killing drugs. The inquiry recommended greater protection for whistleblowers because NHS staff reported that they often faced bullying and isolation if they raised clinical concerns about patient safety. The APPG sought to expose existing problems, change the negative treatment of whistleblowers and suggest practical solutions to deliver enhanced protection in the UK. In June this year, the Group published its report here. It includes statistics from real whistleblowers and their experiences, detailed analysis of the existing issues and explores the “the personal cost of doing the right thing and the cost to society of ignoring it."

Currently, employees and workers can raise Employment Tribunal claims if they have suffered detrimental treatment because they have disclosed information to their employer which is protected. Protected disclosures include information about a criminal offence, the breach of a legal obligation, a miscarriage of justice, dangers to health and safety or environmental damage. The general findings of the APPG were that employees who raised genuine concerns were too often faced with either "inaction or retaliation". Perhaps surprisingly, over 75% of participants interviewed stated that they had faced bullying, demotions, pay reductions, suspensions or forced dismissals for speaking out. The most prominent sector is public health and social care, with 42% of respondents reporting cases related to this sector, followed by education (8.2%) and banking and finance (6.9%).

So what did the APPG find?:

The key findings of the report are summarised below:

• The remedies provided in 1998 by the Public Interest Disclosures Act (PIDA) are largely not understood;

• A general legal obligation for organisations to set up mechanisms to protect whistleblowers is missing. Current whistleblowing law only looks at protecting whistleblowers after they have suffered detrimental treatment;

• The definitions of ‘whistleblowing’ and ‘whistleblowers’ are too narrow as they do not properly reflect current working practice or protect the public. For example, all employees and workers are protected by PIDA, but this does not extend to members of the public who raise health and safety concerns to an organisation;

• There is little public knowledge or understanding of the existing legal protections;

• Policy and procedures often bear no resemblance to the actual practice of organisations; and

• The cost of litigation is too great for most citizens and this is known by and can be exploited by employers who may dismiss or mis-treat whistleblowers in the knowledge that the costs of instructing solicitors to represent them in an Employment Tribunal often deter employees from raising claims.

APPG Recommendations?

In light of these findings, the APPG identified 10 recommendations for Parliament to consider how to improve and update whistleblower protection:

1. The term ‘whistleblower’ should be defined in law. This will help to clarify the confusion that can occur when identifying whether or not a person can be classified as a whistleblower;

1. The legal definition of whistleblowing should include an individual raising concerns about any harmful violation of integrity and ethics, even when such concern is not criminal or illegal;

1. Whistleblower protection should extend to all members of the public, rather than just workers and employees and include protection against retaliation;

1. Mandatory Internal and external reporting mechanisms should be adopted to include meaningful penalties for those who fail to meet the requirements. However, the report gave no indication of what these penalties would be;

1. A review of compensation and how it is calculated. The APPG considers current levels of compensation are often too low. For example, one whistleblower disclosed their pre-trial costs were £78,000 and the average award of compensation for unfair dismissal in 2017/18 was £15,000;

1. An urgent review of the barriers to justice including access to legal aid and an introduction of measures to include protection against costs awards – obviously this is a much bigger issue than whistleblowing;

1. A prohibition of non-disclosure agreements in whistleblowing cases. This is consistent with the current trend in employment law such as the review of the use of “gagging clauses” when settling claims of sexual harassment;

1. Improved regulatory framework and coordination introducing international best practice and a public awareness campaign;

1. An urgent review of the prescribed persons list, a more comprehensive guide to their role and measures to ensure that they fulfil their responsibilities. The role of a prescribed person is to provide workers with a mechanism to make their public interest disclosure to an independent body where the worker does not feel able to disclose directly to their employer. The current list is set out in the Prescribed Persons Order 2014 and includes organisations such as the FCA, CQC and Ofsted; and

1. Establishing an ‘Independent Office for the Whistleblower’ with powers to enforce protections and administer meaningful penalties to organisations and individuals within organisations.

So what does this mean for business?

This report is the first of three which the APPG plan to publish. The next one will survey regulators, government departments and trade unions. The final paper will take into account views by MPs, the Lords, the judiciary and journalists.

Although the report does recognise that the UK’s law on whistleblower protection is well developed compared to many of our European neighbours, the APPG concluded that more needs to be done to improve our domestic law which is “complicated, overly legalistic, cumbersome, obsolete and fragmented”. While this is only a recommendation, the report gives a clear indication that legislative changes to provide further protection for whistleblowers are on the horizon. In anticipation of this, future-facing employers may wish to consider how they can improve their policies and practices to foster a transparent culture where staff can raise genuine concerns without the fear of repercussions.

It is clear from the findings that the whistleblowing landscape has altered significantly in the two decades since PIDA. Whatever Government we have post-Brexit, the message from the APPG is clear – whistleblowers still need greater protection to ensure that malpractice is notified to organisations, without individuals fearing retaliation. The APPG considers it is important that employers are held more accountable for not providing this protection in order to protect the public interest and avoid future scandals such as occurred at Gosport Memorial Hospital.

Like discrimination cases, there is no cap on the compensation which an employment tribunal may award to a whistleblower who has been unfairly treated for making protected disclosures. As with sexual harassment and data protection, whistleblowing is a topical subject which all employers need to take seriously and prioritise because it is going to become a more prevalent area for Employment Tribunal claims. A company’s reputation can be seriously damaged if protected disclosures are not handled appropriately. In future, we are likely to see further legislation and measures which will place employers under greater scrutiny for how they treat whistleblowers. Employers will also benefit by developing a culture where individuals are appreciated for bringing genuine concerns to the company’s attention which can then be swiftly resolved.

We await the further reports of the APPG. In the meantime, businesses should take steps to ensure their whistleblowing policies are up-to-date and followed in practice. Most importantly, managers should be trained on the dangers of ignoring or mistreating whistleblowers in order to protect their business from costly claims.