Whistleblowers clearly play a major role in protecting our wider society against misuse of power and exposing corporate misbehaviour and wrongdoing. Cambridge Analytica, Dieselgate, Panama and Paradise Papers, Carillion and Lux Leaks... to name just a few examples. Additionally, in the UK, there have been numerous instances of NHS whistleblowing, which the 2015 Robert Francis review was supposed to have addressed, but arguably has not.
The EU reviewed the protections given to whistleblowers throughout the EU 27 and found them to be fragmented and inconsistent. Only 10 member states, of which the UK is one, were found to have legislation in place fully protecting whistleblowers. However, this is now contested by many groups in the UK. It is against this background that, on 7 October 2019, the European Council approved the Whistleblower Protection Directive.
But is it necessary for the UK government to implement the directive, bearing in mind the EU has already found that UK law fully protects whistleblowers? With Brexit on the horizon, it is clear that implementation of the directive is not confirmed in prime minister Boris Johnson's withdrawal bill; rather, if the bill becomes an Act, it will be up to the minister to decide whether to bring in legislation that implements the directive.
When introduced, the UK's whistleblowing protection laws were seen as ‘cutting edge’. However, there are now significant criticisms of our current legislation. For example: whistleblowers are not protected from retaliation before they blow the whistle – rather, our legislation provides for (inadequate and late) compensation after the event; enforcement is via the employment tribunals that are formal and expensive; and the law itself is complex and contains no direct civil or criminal procedures to stop, prevent or discourage the bullying, harassment or victimisation of whistleblowers.
By contrast, the directive provides important enhancements:
- It covers a wider ‘population’ of whistleblowers, including shareholders, persons belonging to the administrative, management or supervisory body of an undertaking, including non-executive directors, as well as volunteers and any persons working under the supervision and direction of contractors, sub-contractors and suppliers.
- It also covers those whose ‘work-based relationship’ is yet to begin (eg information gained during pre-contract negotiations) and those whose relationship has ended.
- It covers those who assist whistleblowers, such as facilitators, or third parties who may suffer retaliation in a work-related context; for example, colleagues or relatives, and legal entities the whistleblower may own, work for or is otherwise connected to within a work-related context.
- It protects the whistleblower and all persons with reasonable grounds to believe the information they have reported falls within the scope of the directive and was true at the time of reporting.
- Retaliation is widely defined and includes: termination of employment, discrimination, non-extension of employment contracts, denial of training, bad evaluations, downgrading or omitting promotion.
- It also covers threats and attempts at retaliation, whether direct or indirect.
Furthermore, the directive requires all organisations with 50 employees or more to introduce internal channels and procedures for whistleblowing, including protecting their confidentiality and providing feedback. Outside of regulated sectors such as financial services or the NHS, there is currently no obligation under UK law for businesses to have any formal whistleblowing arrangements.
Additionally, under the directive there will be a defence from civil liability for whistleblowers – eg for breach of confidence, defamation, data protection and copyright breaches – provided they had reasonable grounds for their actions.
If the directive is implemented, it will require businesses to review and amend whistleblowing policies and procedures. But the directive will better support those who have the courage to ‘speak truth to power’, and so will, ultimately, protect our freedoms.
Richard Isham is a partner at Wedlake Bell