Changes to whistleblowing laws are afoot

Finlay McKay and Gavin Macgregor examine the key findings of the All Party Parliamentary Group for Whistleblowing’s recently published report

Currently, employees can raise employment tribunal claims if they have suffered detrimental treatment after having disclosed information that 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 All Party Parliamentary Group (APPG) found that employees who raised genuine concerns were too often faced with either ‘inaction or retaliation’. More than 75 per cent of those interviewed said they had faced bullying, demotions, pay reductions, suspensions or forced dismissals for speaking out. 

The key findings of the report include:

  • The remedies provided in 1998 by the Public Interest Disclosure 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. 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 with 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.
  • The cost of litigation is too great for most citizens and this can be exploited by employers that may dismiss or mistreat 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

The APPG identified 10 recommendations:

1. The term ‘whistleblower’ should be defined in law.

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

3. Whistleblower protection should extend to members of the public.

4. Mandatory internal and external reporting mechanisms should be adopted to include meaningful penalties for those who fail to meet the requirements. 

5. A review of compensation must be carried out. The APPG considers current levels of compensation are often too low. For example, one whistleblower disclosed that their pre-trial costs were £78,000 and the average award of compensation for unfair dismissal in 2017-18 was £15,000.

6. An urgent review of the barriers to justice, including access to legal aid, should be carried out, and measures including protection against costs awards should be introduced.

7. A prohibition of non-disclosure agreements in whistleblowing cases should be enforced. 

8. Regulatory framework and coordination should be improved, to include international best practice and a public awareness campaign.

9. An urgent review of the prescribed persons list must be carried out, and a more comprehensive guide to their role and measures to ensure they fulfil their responsibilities introduced. 

10. An ‘independent office for the whistleblower’ should be established, with powers to enforce protections and administer meaningful penalties.

What does this mean for businesses?

The report is the first of three that the APPG plans to publish. The next will survey regulators, government departments and trade unions. The final paper will consider views by MPs, the Lords, the judiciary and journalists.

Although the report recognises that the law on whistleblower protection is well developed compared to the EU, the APPG concludes 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. 

The whistleblowing landscape has altered significantly in the two decades since the PIDA. The message from the APPG is clear – whistleblowers 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.

Like discrimination cases, there is no cap on the compensation that an employment tribunal may award to a whistleblower. A company’s reputation can be seriously damaged if protected disclosures are not handled appropriately. Employers will benefit by developing a culture where individuals are appreciated for bringing genuine concerns to the company’s attention.

Finlay McKay is a partner, and Gavin Macgregor is an associate, at CMS