Whistleblowing review could support ‘speak up culture’, experts suggest

Legal commentators advise employers to evaluate current policies now as changes may not come into effect until next year

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The government’s whistleblowing review could lead to more protection for those who speak up against wrongdoing in the workplace, experts have said.

The Department for Business and Trade (DBT) announced on Monday that the government will look into the effectiveness of laws that support and protect workers blowing the whistle in the workplace.

Helen Farr, partner and employment lawyer at international law firm Taylor Wessing, said the government may look to focus on anonymity during its review, which could “support and encourage a speak up culture” in workplaces.

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“One concept that has been introduced in mainland Europe (part of the EU Whistleblowing Directive) is that there should be a confidential reporting line that allows employees to protect their identity and remain anonymous,” she said. “This may be an idea that is adopted in the UK.”

Currently, workers who whistleblow are entitled to protections – including protection from detriment or dismissal as a result of blowing the whistle, and a route of redress through the Employment Tribunals if these protections are infringed –  under the Public Interest Disclosure Act 1998 (PIDA). 

Despite the government introduction of a new requirement on prescribed persons to report on the whistleblowing disclosures received, introduced in 2017, the report outlines calls for a reform to the whistleblowing framework to “expand and reorganise” responsibilities for whistleblowing. 

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Chris Preston, director at The Culture Builders, said more whistleblowing protections would mean employers “need to look at their work culture” but notes that a speak up culture can prove vital in preserving a company’s identity.

“A healthy speak-up culture gives the organisation the chance to address behaviours before they develop into something potentially damaging,” he said. 

“This calls for clear processes that enable these difficult conversations to take place without fear of harm professionally to the individual who spoke up,” he added that  speaking up needs to be “actively encouraged” as part of a psychologically safe work culture, which could result in employers “never having to deal” with whistleblowing if done effectively. 

A recent  study by Safecall found more than half (57 per cent) of HR professionals surveyed believed that their employees were actively encouraged to report wrongdoing. 

However, just 42.6 per cent said employees “generally feel safe” to do so and the majority (74 per cent) of HR professionals could not be certain that whistleblowers were confident in raising concerns.

Additionally, the Safecall data found one in five (20 per cent) organisations have whistleblowing processes that their employees would find to be “highly untrustworthy”.

The DBT review, which is anticipated to conclude by Autumn this year, will lead a particular focus on who is covered by whistleblowing protections, the availability of information and guidance for whistleblowing from employers, and how employers respond to disclosures.

It will also seek views and evidence from whistleblowers, key charities, employers and regulators. 

Danielle Parsons, employment partner at Irwin Mitchell, outlined the areas and gaps in the legal protection for whistleblowing that may be filled as a result of the government’s review.

“Currently whistleblowers have rights if they are subjected to detriment or if they are dismissed after making protected disclosures, otherwise they do not have any legal protection,” she said.

“There is also no protection for individuals like trainees, trustees and volunteers, and if the individual is not an employee there are sometimes difficult legal arguments that need to be made on worker status for whistleblowers to achieve legal protection. These aspects of the law are likely to now be subject to scrutiny as part of this review and could be subject to change.”

Alexandra Mizzi, legal director at Howard Kennedy, added that the current whistleblowing legislation framework also fails to protect job applicants.

“Job applicants, except for NHS applicants, are not protected,” she said. “If a job offer is withdrawn when the employer finds out that the applicant blew the whistle in their last role, the applicant will not be able to bring a whistleblowing claim in the Tribunal.”

Mizzi also suggested the review could focus on fixing a requirement for larger employers in the UK to have specific whistleblowing procedures in place, where concerns are raised and investigated, akin to the EU Whistleblowing Directive.

“Currently this is only a requirement in financial services, unlike the position across the EU, where employers with 50 or more workers are required to have reporting procedures in place,” she added.

Kate Palmer, HR advice and consultancy director at Peninsula, said that although changes “likely will be into next year”, employers should take the government’s announcement as an opportunity to evaluate their whistleblowing guidelines.

“In the meantime, employers should review their internal policies and procedures, to make sure employees have the opportunity to raise any concerns or allegations of wrongdoing,” she said. “This might mean making amends to their grievance and/or whistleblowing processes, as well as providing further training to managers on how to handle complaints effectively.”