Protect Donation

£
Personal Info

Donation Total: £1.00

Whistleblowers exposing illegal conduct or abuses of law in their workplace will soon have nothing to fear when revealing the truth, thanks to a new EU Directive to protect whistleblowers from retaliation.

The EU law, once implemented, will see protection for whistleblowers in the public and private sector, including civil servants, the self-employed, shareholders and people belonging to management, administrative or supervisory bodies, volunteers and paid or unpaid trainees, people working for contractors, subcontractors and suppliers, people uncovering breaches during a recruitment process and finally, ex-workers. Colleagues or relatives affected by retaliation, will also be protected as well as ‘neutral people’ who provide confidential advice to whistleblowers.

The Directive, once made law, specifically protects people reporting on breaches of law or abusing the spirit of EU laws in a wide range of important areas such as public procurement, financial services, prevention of money laundering and terrorist financing, product safety, transport safety, protection of the environment, radiation protection and nuclear safety, food and feed safety, animal health and welfare, public health, consumer protection, protection of privacy and personal data and security of network and information systems, protection of the financial interests of the Union, breaches of internal market rules, including competition and State aid rules or tax avoidance issues.

The agreement comes almost two years after the Greens/European Free Alliance (EFA) Group in the European Parliament drafted its own model EU Directive to protect whistleblowers across the European Union, but its not been easy. Several European governments wanted to make the reporting process as strict as possible so that whistleblowers would only be protected if they reported internally first, unless they could fulfil one of the unclear exceptions that would justify reporting to regulators.

Who has to set up channels for whistleblowers to report?
Companies with more than 50 employees are obliged to set up channels and procedures for whistleblowers to report safely. Public bodies are also obliged to set up channels, but exceptions can be provided for municipalities with less than 10,000 inhabitants or less than 50 employees. Small municipalities can also pool resources and share channels or procedures for reporting.

The next step is for EU governments and Members of the European Parliament to rubber-stamp the agreement within the next few weeks, with Parliament adopting the final text in April.

For more information on the European Commission’s original proposal, including its strength and weaknesses, read the Greens/EFA briefing published at the time.

For a summary of the Parliament’s position on the text, visit: https://www.greens-efa.eu/en/article/news/european-parliament-pushes-for-strong-protection-for-whistleblowers-in-landmark-vote/

For a comparative analysis of the Council’s text, see: https://www.greens-efa.eu/en/article/news/whistleblower-protection-around-the-corner-as-eu-governments-agree-on-their-position/

 

NEWSLETTER

Previous Newsletters

For news on Protect, sign up to our newsletter.

In response to the #Metoo movement and scandals like the Presidents Club the government are consulting on limiting the use of confidentiality clauses  – also known as non-disclosure agreements  in sexual and racial harassment cases.   

The Government’s announcement to Parliament on Monday (March 4) made it clear that non-disclosure agreements (NDAs) have their legitimate uses, for example an NDA is standard practice when an employee and employer settle an employment dispute.   It is also legitimate for businesses to want to protect trade secrets.  Nevertheless these agreements cannot be used to shield wrongdoing: this is against the law.

The whistleblowing law- the Public Interest Disclosure Act- ‘trumps’ any part of an NDA which tries to block public interest information from being concealed.  In effect, unlawful or criminal conduct cannot be hidden by an NDA.

But the problem is, not many people are aware of this.  A worrying minority of employers have banked on this lack of knowledge and nonetheless abused such agreements by putting in draconian confidentiality clauses that are unlikely to be enforced in court, hoping that a whistleblower or victim will be in the dark.

This lack of legal know how and a belief that they cannot escalate their concerns prevents the whistleblower going to the Police or the press.  This seems to have been the case of both the Presidents Club and the treatment of Zelda Perkins in relation to allegations of rape and sexual assault against Harvey Weinstein.

The Government announced the following key proposals that they believe will create ‘a more level playing field between workers and employers, providing more understanding over rights and legal responsibilities’:

  • Legislating that confidentiality clauses cannot prevent any disclosure to the police
  • Requiring a clear description of the limits of confidentiality provisions within a written statement of employment particulars (in the case of confidentiality clauses in employment contracts) or within settlement agreements
  • Extending the law that means a worker agreeing to a settlement agreement receives independent advice, by specifying that the advice must cover the limits of any confidentiality clauses in the settlement agreement.

 

Anything that clarifies victim and whistleblowers rights is a good thing – but the response outside government so far has been a chorus of “this doesn’t go far enough” and described by one political pundit as a “public information campaign”.   Protect’s view is the government proposals will better inform workers of their existing rights but it doesn’t go far to alter the system itself.  It doesn’t clarify the tricky issue of when harassment or discrimination can be disclosed, and it doesn’t address the individualised approach to dealing with workplace discrimination.  Protect believes these proposals are a good starting point, but far from the final conclusion.

The #Metoo movement has been founded on individuals speaking out and finding they are not alone in voicing their concerns.  This is the dilemma facing the whistleblower – how do they know their concern is a one-off incident, or indicative of a wider problem.  All the time an individual can be “silenced” through a legitimate NDA, the problem remains.

Some may suggest that discrimination (of any kind – not just sexism) meets the public interest test.  At present, what is the public interest is a matter for tribunals to decide.  A single case of discrimination may not meet the “public interest” test for disclosure– but the rules are not hard and fast – a tribunal needs to ask: what is the nature of the wrongdoing, the interests affected, the identity of the wrongdoer, the numbers involved?  Too many uncertainties and the individual is effectively silenced.  Worse, the employee risks the employer pursuing them through the courts for a breach of confidence if they speak up (to which there is little comfort in a response that the remedy lies in the employment tribunal).  Some commentators have suggested that there should be a public interest defence in the courts to a breach of confidence claim – but the uncertainties about what is the public interest remain.

Suppose the government clarified when it is in the public interest to report discrimination.  The next question is to whom?  Clearly the police are not the appropriate body to take action over an unlawful breach of an employment contract.  Even if they welcome the intelligence, we need to manage expectations that allowing people to report to the police will result in action.  Is it time for regulators to step up?  Some like the FCA recognize that discrimination may be relevant in their assessment of fit and proper persons.  The Kark review in the NHS also examines what standards should be expected of senior managers.  But many industries are unregulated and, as a result, there is no external body to “join the dots” and identify wider workplace concerns. As the Equality and Human Rights Commission prepares to join the list of prescribed regulators, is it time for them to take on this role?

From Protect’s point of view we hope through the public consultation to persuade the Government to widen reforms of all whistleblowing situations and add the following to their announced proposals:

  • Section 43J should be amended with more robust language. We suggest the following wording: “no agreement made before, during or after employment, between a worker and an employer may preclude a worker from making a protected disclosure.”
  • We agree with the consultation proposal that there should be a requirement on lawyers when advising on settlement agreements (see S203 (3) ERA) to explain the meaning and effect of 43J PIDA (and any additional anti-gagging provisions brought forward by the government).
  • To publicise and underpin fresh guidance there should be a public awareness campaign around workers’ rights under PIDA as well as anti-discrimination law in the Equality Act.
  • Widening the ban: While we do not support the outright ban of NDAs, we do not think it would ever be appropriate to use an NDA to prevent the disclosure of an unlawful act that has not yet taken place. We would also like to ensure that other clauses in settlement agreements (such as warranties or non-disparagement clauses) are not used to circumvent the anti-gagging provisions in PIDA (or other soon to be proposed anti-gagging provisions).
  • Give a greater role to Equality and Human Rights Commission (EHRC) in enforcement of harassment and discrimination: we are concerned the current proposals will not cover situations where sexual and racial harassment/discrimination falls below the level of criminal activity, meaning the police would not be able to investigate. In this situation a whistleblower would have the right to raise their concerns, even with an NDA in place but with no external body or regulator that could take the concerns.
  • Stronger duties on employers: we back the Women’s and Equalities Select Committee’s proposals to create a positive legal duty on employers to prevent harassment with a breach of this duty enforced by the Equality and Human Rights Commission. This, combined with the Government proposals to ban agreements that prevent disclosures being made to the police, could really rebalance the power between workers and employers.

NEWSLETTER

Previous Newsletters

For news on Protect, sign up to our newsletter.

Five well-known European whistleblowers wrote directly to EU Vice President Frans Timmerman and Commissioner Věra Jourová calling on them to ensure a new law to protect whistleblowers across all 28 Member States removes any doubt that whistleblowers are protected for going directly to the competent authorities.

The whistleblowers – Antoine Deltour (multinational tax avoidance schemes in Luxembourg,LuxLeaks)Andrea Franzoso (high value fraud committed by President of company, Italy) Raphaël Halet (multinational tax avoidance schemes in Luxembourg, LuxLeaks) Brigitte Heinisch (chronic understaffing causing severe ill-treatment of elderly people in care, Germany) Ana Garrido Ramos (corrupt practices in municipal Town Hall, leading to Gürtel scandal, Spain – also sent their letter to the European Council representing state parties in the negotiations on a new EU law.

The Council’s position not only rejects decades-long, hard won protections for whistleblowers in Europe (see Ireland for instance) but seems determined to turn a law that should be designed to ensure the free flow of information for the responsible exercise of institutional authority, into an information control system to protect the reputation of employers.

Read more

NEWSLETTER

Previous Newsletters

For news on Protect, sign up to our newsletter.

You have more to worry about Facebook, Google and the like collecting your data than any information any government holds on you. That was the view of Mark Zaid, US Attorney who spoke at UCL’s conference on “Privacy and Data: Law and Practice” about the guardians of information in our “post-truth” world.

He should know – many of his clients are spies and he brings lawsuits against the US President. His stark message was these large organisations – which capture so much information about all of us in our daily lives – are largely unregulated. You may sign up to their privacy policies now, but what happens in 50 years’ time if they decide that’s long enough and release all the information they hold on you? The UK Parliament’s Digital, Culture Media and Sports Committee have recently published their report describing Facebook and its executives as “digital gangsters” following their investigation into disinformation and fake news.

How is it that we have so many rules – from confidentiality clauses in contracts to GDPR – that control what information we can share, and yet fail to regulate the biggest data gatherers of them all? Mark Zaid referred to a book – published 50 years ago – called “Towards 2018” which predicted many of the technological advances we’ve seen and warned that privacy would be an issue…. Why didn’t we prepare and what should we do now?

For whistleblowers the issues of privacy and confidential information are constantly rubbing up against disclosures in the public interest. The #Metoo movement and the recent injunction sought by Philip Green against the Telegraph show our lines about what should and should not be private are fluid. There are real concerns if employers use Non-Disclosure Agreements to cover up wrongdoing when it comes to sexual harassment. But the answer is to consider when, not if, NDAs are used – both sides can benefit from keeping some matters confidential.

The direction of travel in many areas is away from privacy rights. Partners at BCL Solicitors talked of the erosion of financial privacy rights when it comes to detecting crime and money laundering. Individuals too should be wary – anyone who thinks that they can wipe their past will find the “right to be forgotten” is heavily circumscribed and can’t be used to hide past wrongdoing.

UCL provided a wide ranging and thought provoking course, which raised many questions about how we should regulate and protect information and in whose interests.

Blog by Liz Gardiner, Interim Director of Policy & Legal

NEWSLETTER

Previous Newsletters

For news on Protect, sign up to our newsletter.

Protect’s Head of Policy Andrew Pepper-Parsons attended the OneEducation Safeguarding conference in Manchester on 8 February to deliver a whistleblowing workshop for those tasked with overseeing or running safeguarding procedures within schools. 

Delegates were fairly expert on safeguarding and knew the appropriate way to handling a safeguarding issue raised with them, but my workshop emphasised how whistleblowing arrangements (by this I mean both a whistleblowing policy and the culture that sits around it) could complement what they were doing around safeguarding.

Take-away learnings:

Three key tips for the education sector to ensure they have an effective whistleblowing arrangements:

  1. Have a policy that is written in plain English: small schools may not need a dedicated policy, many roll up a safeguarding policy and whistleblowing policy into one but whatever is created needs to be written in plain English.  Avoid legalistic language that can make the whole policy seem very defensive and scary.
  2. Promote and test awareness of the arrangements: This is really two points but they’re closely linked.  Publicise the policy, through intranet messages and newsletters but also test levels of awareness.  Some organisations run staff surveys but even small schools can hold team briefings or meetings with staff to see what how aware they are of the policy.
  3. Reacting correctly to a whistleblower is key: A good policy and high levels of awareness among staff can be undone by poor handling from a manager.  Making sure that those handling whistleblowing concerns are aware of their obligations around taking action on victimisation and the importance of feedback to a whistleblower is key.  It can be a big step for someone to come forward, and if they feel unsupported this can ripple out to other staff and negatively affect the culture among other staff.
  4. Governor training: Ensure all governors are up to speed and know what to do when it comes to effectively handing a whistleblowing concern

NEWSLETTER

Previous Newsletters

For news on Protect, sign up to our newsletter.

Protect is calling for a shake-up of UK regulatory bodies with enforcement powers, calling on them to ‘step up’ and better regulate the industries they monitor.

Head of Policy at Protect, Andrew Pepper-Parsons, said, “Too many of our callers who approach their regulators find a dead end for their concerns, or receive stony silences instead of feedback.

“Our Better Regulators campaign will see a diverse range of regulators come together to discuss how we can improve responses to whistleblowing in the regulatory sector. Early indicators from conversations we’ve had show a willingness and enthusiasm, which is fantastic.”

Regulators have come under fire for many high-profile scandals in recent years, often with little urgency to investigate leaving the general public suffering. The HBOS scandal where a whistleblower tried to alert her bosses to mass fraud and the Oxfam sex for aid scandals are just two of many regulatory failures.

The Better Regulators Campaign will see Protect engage with more than 50 of the UK’s most powerful regulators to look at their whistleblowing processes. The overall campaign aim is to achieve a sea change amongst regulators in the area of whistleblowing and for all regulators to come together to share and learn best practice.

In 2017, the Government made it compulsory for regulators to annually publish:

the numbers of concerns raised from whistleblowers

– a summary of any enforcement action/regulatory action that’s come from the whistleblowing disclosure

– a summary of the impact any enforcement/regulatory action has had

Eighteen of the regulators are ‘technically compliant’ because they have published a report – but a report without a single whistleblowing disclosure.

Head of Policy, Andrew Pepper-Parsons, added, “While it’s positive most regulators have published reports, we’re disappointed so many have not complied with all elements of the reporting duty. We’re also concerned by those regulators who have published reports stating they have received no disclosures and question whether these regulators are doing enough to encourage whistleblowing in their sector.”

The Protect Better Regulator League Table shines a light on regulators yet to publish data or those falling short.  A round-table event, Better Regulators – Making Whistleblowing Work – takes place on April 29 to learn how the UK regulatory industry can learn from each other and improve for the better.

Visit our Better Regulators Campaign

NEWSLETTER

Previous Newsletters

For news on Protect, sign up to our newsletter.

Whistleblowers play a key role in exposing corruption, public safety scandals and unethical behaviour. Unfortunately, all too often they can suffer fear, silence, and loneliness  just from telling the truth. 

Protect, along with our partner, WIN (Whistleblowing International Network) is supporting the campaign #TruthNeedsFriends by the Green/EFA Group in the EU Parliament which hopes to educate the wider public and employers about whistleblowing and why its so vital for society.

The European Union is on the verge of enacting new legislation that would change the lives of people who reveal the truth. People who tell the truth shouldn’t be punished. The  Green/EFA Group in the EU Parliament is campaigning to ensure that the law does what it is meant to.

The new European Whistleblower Directive would oblige all EU governments to introduce minimum standards of protection for truth-tellers. These protections would include penalties for people that retaliate against whistleblowers or try to shut them up; an obligation for public and private bodies to set up channels for receiving reports and to keep the identity of the whistleblower confidential; and legal shields for whistleblowers so that, if for example they breach a confidentiality agreement, they would not be held liable for it.

So far, the European Parliament has been the strongest in defending the right to the truth. Now, the Parliament has to negotiate with the European Commission and the Council (where all the EU governments are represented) in order to draft the final version of the much-awaited whistleblower protection law. It’s a race against time to get the text right and adopt it before the upcoming European Parliament elections.

People who tell the truth shouldn’t be punished. It’s time to call on EU governments to protect whistleblowers, because right now, the #TruthNeedsFriends.

Take action here: https://www.greens-efa.eu/en/truthneedsfriends/

NEWSLETTER

Previous Newsletters

For news on Protect, sign up to our newsletter.

A governance report into local authorities by the National Audit Office (NAO)  has found one in six councils do not have their whistleblowing policies easily available on their websites,  and of the policies that the NAO could find –  24% were out-of-date.

The report, Local Authority Governance, published 15 January, acknowledged the challenges facing local authorities due to increased cuts and the report states, ‘Governance arrangements have to be robust in this challenging context or this creates a risk that authorities will not be able to deliver their objectives.’

Protect’s acting Chief Executive, Jon Cunningham said, “We work with many local authorities across the UK. Many come to see the benefit of our work and whistleblowing as a risk governance tool only after a particularly unsavoury scandal has hit the press. We would like to be working with more local authorities to prevent risk and problems and those negative headlines in the first place. Local authorities are accountable to the communities they serve, and it’s not good enough to be providing out of date information on whistleblowing or failing to be transparent with no whistleblowing information on council websites.”

He added, “We know local authorities are under unprecedented pressure with reduced budgets, but with these challenges, as the NAO report acknowledges, comes increased risks to services. Now more than ever, local authorities need to sit up and realise whistleblowing works and can keep services and the community it serves, safe.”

 

 

NEWSLETTER

Previous Newsletters

For news on Protect, sign up to our newsletter.

Protect Head of Policy Andrew Pepper-Parsons attended conference Exposing Secrets: the past, present and future of U.S. National Security Whistleblowing and Government Secrecy which brought together academics, legal experts, journalists and a few US national security whistleblowers to debate the issues.

The two-day conference on US national Security whistleblowing aimed to take a historic look at national security whistleblowing to see if fresh perspectives could be found. 

Why does history matter?  For me this was an interesting approach as the cases of prosecutions of national security whistleblowers are low in both the US and UK. Five in the US since 2015, and the last prosecution brought to trial in the UK was 2006.[1]  The legal frame work in both countries creates an offence with no public interest defence. Also in the US and the UK, the classification of secrets is held by the executive (in the UK this would be Ministers, in the US, the President) and  no way challenge abuses and decisions over what should be classified.

This all creates a secret space where the intelligence community operates, where there is little information, especially in the UK, about how these agencies operate.  On top of that we know from whistleblowing best practice in industries and sectors that are more open, that whistleblowing arrangements that lack an independent external route tend to be more flawed. A good example of an external route in the UK is the Financial Conduct Authority regulator which insists they are included as a route for whistleblowers to raise concerns with.

History lessons

History can show us the development beyond the cases that have been brought.  Sam Lebovic, historian of American politics and culture, pointed out that the current system sets the rules of game of disclosing national security secrets between the government and the press but leaves the whistleblower out in the cold.  The Government have strong legal powers to pursue whistleblowers who reveal information to the press, but these laws are not used against the press themselves, due to the First Amendment giving them a strong defence as a publisher.  The First Amendment (Amendment I) to the United States Constitution prevents the government from making laws which respect an establishment of religion, prohibit the free exercise of religion, or abridge the freedom of speech, the freedom of the press, the right to peaceably assemble, or the right to petition the government for redress of grievances. It was adopted on December 15, 1791, as one of the ten amendments that constitute the Bill of Rights.

Such protection  is not available to the whistleblower who is left rather exposed, relying on the journalist to protect them as a source while also hoping the US Government doesn’t independently discover who they are.  An interesting area of research would be to look at the development of these type of measures in the UK to understand how we got to our  current legislation  – for example it would be interesting to examine the historical development of the Official Secrets Act since it was first introduced in 1911.

Can journalists play a role?

Edward Snowden, the NSA whistleblower currently exiled to Russia, who skyped in to the conference,  adds to this by stating that the current system is a reflection of the incentives in place for government.  Their interest is to avoid political embarrassment rather than to hold the intelligence community to account. This informed his decision to use journalists rather than internal routes with an organisation because he had seen Thomas Drake and John Kiriakou both suffer costly legal fights and prison for using these mechanisms.   Thomas Drake, a former senior executive at the National Security Agency, blew the whistle on massive multimillion dollar fraud, waste and abuse, the failure of 9/11, as well as the widespread violations of the rights of citizens through secret mass surveillance programs after 9/11.  Former CIA analyst John Kiriakou was the first US government official to confirm that the US used waterboarding to interrogate terrorism suspects. In 2007, Kiriakou disclosed to ABC News the CIA’s waterboarding of Abu Zubaydah. In 2012, Kiriakou was charged and prosecuted for revealing classified information to the media and in 2013 was sentenced to 30 months in jail.

Snowden believes an independent panel of journalists should be used as an independent mechanism for decisions of disclosure.  This is probably unworkable as journalists would be accused of being biased towards disclosure but Snowden is not wrong on wanting to create a more independent system.

The introduction of a public interest defence and an independent classification system is possible. The Tshwane Principles which is a set of global principles developed by civil society academics and practitioners on balancing the need for government’s to protect sensitive information against the public’s right to know. This is the best route to create a confidential rather than secret space for Government to operate when it comes to national security.

[1] US: https://www.theguardian.com/us-news/2015/mar/16/whistleblowers-double-standard-obama-david-petraeus-chelsea-manning and https://theintercept.com/2018/06/26/reality-winner-plea-deal/ UK: https://www.theguardian.com/media/2008/jan/09/pressandpublishing.freedomofinformation

NEWSLETTER

Previous Newsletters

For news on Protect, sign up to our newsletter.

Protect attended a public meeting of the All Party Parliamentary Group (APPG) on Whistleblowing at Westminster chaired by Baroness Kramer along with many whistleblowers,  including those with experience in education, care, the NHS and other public services.

Attendees were generally in agreement about the principles of whistleblowing and that greater support for whistleblowers is needed. To this end, Baroness Kramer led a discussion about how attendees had been let down by the law, and what improvements they saw as being necessary. The following issues were raised:

• Extending the cover of whistleblowing law The Public Interest Disclosure Act (PIDA) so it covers more than workers/employees eg school governors, judges and other ‘office holders’, parents, volunteers and students as well as foster parents

• Negative feelings towards the term ‘whistleblower’ were expressed, and the proposal ‘public protector’ was raised. There was some dispute on this as changing the name does not change the action. The benefit of the term whistleblowing is that it is widely recognised.

• A lack of prompt or appropriate response from regulators; regulators can appear unaccountable.

• A public fund to cover whistleblower legal fees was discussed as they deserve to have a fair trial and this is often impossible if they are unrepresented. Whistleblowers act in the public interest and therefore should be publically funded.  The group heard how an individual was at risk of losing their home due to funding legal fees.

• The use of expert industry panels to support or dispute claimants disclosures as being in the public interest and valid as they demonstrate wrong doing. The panel opinion could then be submitted to an Employment Tribunal  or other forum for judgement. ET does not have industry specific knowledge to analyse if wrongdoing is present or if concerns were reasonably held. Panels could sit within professional bodies and would operate a peer review system in analysing disclosures.

• Employment Tribunals were criticised as not understanding the experience or pressures facing whistleblowers. It was suggested that an Office of the Whistleblower could perform this role, or provide significant support in preparation and throughout hearings.

• Holding organisations to account. Two approaches were suggested, firstly there should be consequences for organisations who do not respond effectively to concerns. Secondly, there could be a ‘kitemark’ system for organisations that respond well to concerns, and treat whistleblowers with respect. A further idea to increase transparency would be requesting organisations to disclose the amount they have spent defending whistleblowing claims.

• Organisations should be held to their own whistleblowing policy, breaches of which could be considered contractual breaches.

The session ended on a positive note, attendees felt it to be the beginning of a productive and enthusiastic project. Baroness Kramer encouraged written submissions to the APPG to continue, as work is under way to consolidate information from those involved in whistleblowing to form recommendations for legislative reform.

Protect is keen to support the APPG’s research and proposals, and improve  the landscape for whistleblowers and the public they protect.

 

Please take the APPG whistleblowing survey if you are a whistleblower

 

By Protect Adviser, Laura Fatah

NEWSLETTER

Previous Newsletters

For news on Protect, sign up to our newsletter.