£
Personal Info

Credit Card Info
This is a secure SSL encrypted payment.

Donation Total: £1.00

-->

Research around whistleblowing claims under whistle blowing law, the the Public Interest Disclosure Act 1998 (PIDA) being brought before the employment tribunals point to a worrying figure of a 3% success rate.

Discrimination cases also fare as badly, with age discrimination cases being even lower at 1%. Overall, employment tribunal actions have a success rate of below 40%, with the highest being for redundancy claims at 39%. However, the majority of claims remain remarkably under 10%. [1]

But this 3% must be put into context.

PIDA suffers like all other employment tribunal claims due to the lack of legal support provided to individuals, which is part of a wider problem regarding access to justice in employment law, perpetuated by legal aid cuts.

With no current extension of legal aid to employment law cases (aside from discrimination cases), this may be one of the reasons to blame for this stark figure, which surely discourages claimants from pursuing whistleblowing claims to tribunal.

High legal costs mean whistleblowers relying on enforcing their rights under PIDA, are either left to take on this financial burden or left with no choice but to represent themselves in person. This leaves claimants vulnerable to employers who who have legal representation armed with a team of lawyers, due to the reputational risk involved in public interest cases.

The figures clearly speak for themselves.

From our research 40% of claimants were self-represented compared to the 44% who had legal representation. However, 68% of these claimants lost compared to the 53% who were represented.[2] This disparity means that whistleblowers are bearing the brunt of a regime which puts unrepresented claimants at a disadvantage making them less likely to succeed.

It is also becoming all too common for respondents to use costs warnings as an aggressive tool against whistleblowers to either withdraw or settle claims before going to a full hearing. Protect are in communication with the Solicitors Regulation Authority on this matter.

Settlements must also be considered when looking at this 3% statistic. In 2018/19, 31% of PIDA claims were settled through ACAS Early Conciliation.[3] This suggests that it also may be the case that many good claims are settled before seeing a full run at the tribunal, with poorer cases, especially with no legal support left to battle through without much success.  What we don’t know is how many of settled cases have access to early legal advice- there is no available data from the Government or elsewhere on this point.

Protect’s Whistleblowing Bill which is arguing for new legislation – will put whistleblowing rights on the same footing as discrimination to qualify for legal aid. This offers a more robust framework for legal aid that goes further than the EU Directive – breaking down barriers to justice, and providing further protection and support for whistleblowers to come forward in raising vital public interest concerns.

 

[1] Statistics taken from released quarterly tribunal figures for April to July 2019.

[2] Whistleblowing: Time for a Change, a 5 year review of Protect’s work (formerly Public Concern at Work) P22-23

[3] Statistics taken from released quarterly tribunal figures for April to July 2019.

 

 

By Protect Adviser Burcak Dikmen


Today’s Queen’s Speech sees the UK Government commit through an Employment Bill to: ‘Protect and enhance workers’ rights as the UK leaves the EU, making Britain the best place in the world to work’.

Details on what this will mean in practice are in short supply, and that includes what the future holds for reform to whistleblowing rights.  Butf or the Government to realise the commitment of ‘making Britain the best place in the world to work ’ reforming the legal protection for whistleblowers is essential.

Whistleblowing protection in the UK stands at cross-roads.

Lauded as the gold standard of protection laws, much has changed since the Public Interest Disclosure Act (PIDA) was introduced in 1998.  New laws in Ireland, Australia and now the recently passed EU Directive highlight how whistleblowing rights in the UK are starting to fall behind internationally.  The world of work, including the needs of whistleblowers, has moved on since 1998 and PIDA has not kept pace.

A failure to reform PIDA will impact on individual whistleblowers in the workplace, and their ability to seek compensation if they are victimised, dismissed or forced out of their job. Inadequate legal protection is a problem for us all – and may deter future whistleblowing disclosures.

The Queen’s Speech makes one concrete commitment: the creation on a Single Enforcement Body which is a new regulator tasked with protecting workers’ employment rights and ensuring that exploitation of workers is deterred.

We welcome this proposal.

Earlier in the year we contributed to the consultation on creating this body, pointing out that like all regulators, the Single Enforcement Body will need to rely on the information provided by whistleblowers. With this in mind we argued the body should be prescribed under PIDA as a regulator bolstering the legal protection for whistleblowers when they raise concerns with this body.

For the Government to ensure UK whistleblowing rights keeps pace with developments internationally, PIDA will need to be reformed in these key areas:

  1. Extending the scope of the law to include all those who raise concerns in a work-related context. This would allow volunteers, those in appointed positions and others to rely on legal protections if they are victimized for raising concerns.
  2. Increasing the range of disclosures which will qualify for protection to include gross waste or mismanagement of public funds and breaches of the employer’s policies and behaviour which can adversely affect the employer’s reputation or financial stability.
  3. Setting whistleblowing standards for employers to follow. Currently, outside of health and financial services, few employers face any requirements to have policies and procedures in place. Protect would like to see the introduction of specific mandatory arrangements to ensure that employers are dealing with whistleblowing concerns effectively, and a positive duty on employers to prevent victimisation.
  4. Providing protection to individuals who raise concerns with their trade unions representatives.
  5. Setting standards for prescribed persons (BEIS recognised regulators) to promote a consistency of approach in handling whistleblowing concerns across Britain’s range of industries.
  6. Increased clarity around settlement agreements and gagging clauses.
  7. Providing legal protection to those who are mistakenly identified as a whistleblower, or who may be considering a future disclosure.
  8. The introduction of an Independent Whistleblowing Commissioner, to investigate where concerns have been mishandled, set standards for employers and prescribed persons, improve public awareness and impose fines on employers or regulators for breaches of standards.
  9. Increasing the time limit individuals have to bring a claim in the Employment Tribunal.
  10. Introducing legal aid for claimants in whistleblowing cases.

By Head of Policy, Andrew Pepper-Parsons


Head of Policy at Protect, Andrew Pepper-Parsons spoke at the National Guardian Office Pan Sector Conference on our recent work with regulators and professional bodies, the aim of which is to explore the challenges and opportunities these bodies have when receiving whistleblowing concerns, and in particular in handling and responding to the individual raising the concern.

The NGO, which supports positive cultural change across the NHS through supporting a network of Freedom to Speak Up Guardians, arranged and hosted the event with delegates from a diverse industries to and industries to talk about the Public Interest Disclosure Act 1998.

Other speakers included academic Wim Vandekerckhove who presented a report of the findings from whistleblower research in Australia, one of which demonstrated the positive impact of carrying out a risk assessment at the point of disclosure, and how this can benefit both the whistleblower and the employer, in addition to reducing the impact of stress on the employee.

Sean Parker from the Civil Aviation Authority spoke about how the CAA had used its statutory statement of purpose to resist Freedom of Information requests made by the media. This prevented information given in confidence by whistleblowers being exploited for commercial benefit, where this would not improve flight safety. GDPR has stipulated the information only be used or the purpose that it was given, so if the media is unable to confirm how it will use these disclosures to improve flight safety, the regulator can resist this request.


A review calling on a total overhaul of the UK audit profession, following a series of corporate scandals has been welcomed by Protect.

Former London Stock Exchange Chairman, Sir Donald Brydon was tasked with reviewing the auditing sector, and his report,  ‘Assess, Assure and Inform, Improving Audit Quality and Effectiveness, states: ‘Audit is not broken but it has lost its way and all the actors in the audit process bear some measure of responsibility.’

The report calls fo a redefinition of audit, separating audit work from accountancy and reinforcing its role as a public interest function

Protect Acting Chief Executive, Liz Gardiner said: “We welcome the Brydon report’s proposals, and in particular the recognition that whistleblowing protections do not go far enough. As we have seen with recent scandals from Carillion to Patisserie Valerie, all too often wrongdoing can go undetected. There needs to be far greater transparency in auditing, and better protections for those who speak up.

“Going to an auditor may be an obvious choice for a whistleblower if the concerns are financial, but auditors are not generally prescribed persons. We support Sir Donald’s call for changes to the Public Interest Disclosure Act (PIDA) to widen the categories of concern so that they include financial misrepresentation, and so that a broader list of people – including shareholders and suppliers – are protected if they raise concerns about financial wrongdoing.”

Protect is campaigning to update PIDA and has drafted a Whistleblowing Bill which has greater scope and better protections than the current law.


Nearly half of brokers surveyed were ‘unaware’ of a newly introduced Senior Management and Certification Regime (SMCR). The new rules,  which come into play this month, have been extended to all insurance intermediaries and solo-regulated firms, just one year after the rules came into effect for insurers.

The SCMR legislation was originally introduced in the banking sector in 2013 following the financial crash as a way to encourage a culture of greater responsibility among senior staff.  Legislation was amended in 2016 to extend the rules to all authorised firms and this week saw it being extended to insurance intermediaries and solo regulated firms.

But a survey of 250 brokers by Eclesiastical Insurance found  56% of brokers were aware of the changes. Only 4% of brokers said that they were aware of everything the needed to do ahead of implementing SMCR, compared to a third who had no knowledge at all.

Protect Development Director Jon Cunningham said, “This  survey highlights many insurance firms are getting measures in place for the new Senior Management and Certification Regime, but it also highlights a worrying lack of awareness for many insurance brokers.

“We are here to support any organisation with training and guidance around compliance, governance and speak up arrangements and do a great deal of work with the FS sector. Good governance ultimately helps to raise standards and accountability”.


Francesca West is standing down as Chief Executive of whistleblowing charity Protect after 12 years to spend more time with her young family.

Joining the charity as an adviser in 2007, she has held posts as Legal Officer, Director of Policy as well as Deputy Chief Executive, before becoming Chief Executive in 2017.

Protect Chairman, Paul Boyle, said, “It is with great sadness we say goodbye to Francesca who has supported many whistleblowers, and played a key role in Protect’s training and consultancy service to a wide range of organisations from small charities to multi-national companies.

“Francesca has overseen a rebrand and been the brains behind Protect’s unique 360 whistleblowing Benchmark tool amongst many of her successes. On behalf of the Board and staff, I would like to thank her for dedication and passion, she has quite simply been the best ambassador. We wish her well in the future”.

Head of Legal, Elizabeth Gardiner has been appointed Interim Chief Executive whilst the legal charity recruits to fill the vacancy on a permanent basis.

Francesca said, “It has been an enormous privilege working for the charity and for whistleblowers. The people at the charity are talented, passionate and committed and I feel very lucky to have had this opportunity. I hope to remain close to this vital issue that sits at the heart of an open democracy. I wish the charity and my successor the very best.”

 


Protect  Chief Executive Francesca West will be speaking at the International Development Safeguarding Conference on December 12 on the importance of whistleblowing and speaking up in the Third Sector, and what needs to change in the sector since the Oxfam scandal.

The International Development Safeguarding Conference will offer a leading platform to assess the progress made to date around improving safeguarding practices and discuss next steps in strengthening policies and approaches towards abuse and misconduct.

Participants will gain the latest practical and policy updates from key sector leaders about the collaborative steps being taken to address and prevent incidents of misconduct, and negligence around these, across the development and humanitarian aid sectors.

Read Francesca’s blog


Amjad Rihan raised concerns about his employer laundering money and was branded a troublemaker and dismissed. Howard Shaw raised concerns about the Met Police’s interview process and was removed from his unit and faced unfounded disciplinary action. Shahmir Sanni blew the whistle on Vote Leave’s campaign tactics and was outed as gay by Downing Street and dismissed.

Under the Public Interest Disclosure Act 1998, whistleblowers have the right not to suffer any detriment as a result of raising public interest concerns. Rihan, Shaw and Sanni should not have been victimised, bullied nor dismissed for taking the brave and difficult decision to raise workplace wrongdoing. The problem with the current legislation is that it only allows workers to bring a claim in the Employment Tribunal once the detriment has occurred. By this time, it is often too late.

More needs to be done to stop victimisation at source before it occurs. Protect’s new draft Whistleblowing Bill aims to improve the law in this area.

Primarily, our draft Bill will place a positive duty on employers to actively take all reasonable steps to prevent detrimental treatment of whistleblowers or to stop detriment immediately if it begins to occur. This would mean employers would need to be far more proactive in terms of preventing managers, co-workers and third parties such as suppliers from retaliating against a whistleblower. This duty will mean that whistleblowing or speak up procedures can no longer simply be a “tick-box exercise”. Employers will need to demonstrate that they have effective measures in place.

This is so important because fear of victimisation can impact on the ability of concerned workers to raise their concerns. Our joint survey with YouGov from 2018 showed that 23% of working adults would not speak up due to fear of reprisals - the most common barrier preventing workers from raising concerns. This means that victimisation is dangerous for the whistleblowing culture of any workplace; if other workers are aware of colleagues being victimised for speak up, then this suppress future whistleblowing.  By compelling employers to consider and implement procedures to specifically prevent victimisation, whistleblowers will feel more confident about coming forward.

A 2017 study by the Association of Certified Fraud Examiners showed that fraud is more effectively detected by tip-offs than internal auditing. Furthermore, research from Stubben and Welch in the USA has shown that firms which actively use their internal reporting systems are more likely to address concerns before they become larger problems which means employers face fewer legal claims. This not only reduces litigation costs for employers but also lowers settlement amounts. A new duty on employers will not be a burden on good organisations but instead will offer a competitive advantage as it will punish organisations that do not take whistleblowing or speak up culture seriously.

This new duty offers great protection for whistleblowers, employers and the public more generally.

By Kyran Kanda, Protect Adviser