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EU Directive on whistleblowing

On the 16 April 2019 the EU Parliament passed a new, ground-breaking EU Directive on whistleblowing. This briefing is Protect’s analysis of which parts of the Directive the UK Government need to adopt to ensure that our legal protection for whistleblowers does not slip behind the protection offered in Europe.

The legal protection for whistleblowers was introduced by the Public Interest Disclosure Act 1998 (PIDA), now incorporated into the Employment Rights Act 1996, and the following Directive reforms will further strengthen PIDA.

EU Directive areas UK Government needs to adopt

The existence of PIDA means there is no need for the Government to adopt the Directive in its entirety, but the following areas will strengthen the current legal framework to the benefit of all whistleblowers:

A) Broadening the whistleblowing protection to include more people including volunteers, Non-Executive Directors, self- employed contractors and job applicants. Too many people in the workplace who may see wrongdoing are excluded from the protection of the law.  Under the EU Directive a much broader range of people will be able to claim protections from detriment or dismissal if they raise concerns.  To date, PIDA has been expanded piecemeal to include junior doctors (following Chris Day’s case) and job applicants in the NHS, and the police [1]

Another key missing group, as they are neither workers nor part of the whistleblowing disclosure, are third party groups such as family members: they often suffer from victimisation (especially if the family member works in the same organisation as the whistleblower). The EU Directive presents an opportunity to adopt a coherent and comprehensive list of those who should be protected.Crucially, the Directive will also cover job applicants – addressing the difficulties faced when a whistleblower is “blacklisted” and labelled a trouble maker. They may be denied a job opportunity, e.g. at interview or reference stage, because they have raised whistleblowing concerns in a past job role but currently have no remedy.Currently PIDA only extends this protection to NHS workers but if the Government implements this part of the Directive this will extend to workers in all sectors.  If such protection had been in place in the construction industry, then many trade unionists and workers raising safety concerns could have challenged the blacklist maintained by the industry much sooner.[2]

EU Directive key points

B) A requirement on all organisations with more than 50 employees to introduce internal channels and procedures for whistleblowing, including protecting their confidentiality and providing feedback. There is currently no obligation on organisations (outside of regulated sectors such as Financial Services or the NHS) to have any whistleblowing arrangements.  This simple change would make it easier for workers across the UK to find a route to speak up and stop harm sooner, whatever sector they work in.  This change would underpin the current philosophy behind PIDA that employers are best placed to deal with whistleblowing but too often too many employers do not have the correct infrastructure in place.  The Directive offers a way of holding employers to account in this area, as well as enshrining key parts of recognised best practice that have been worked for decade

C) New standards for regulators.  Regulators are vital to the whistleblowing system as they are, in most cases, the external route whistleblowers turn to when attempts to raise their concerns with their employer fails.  Our experience through the Advice Line is that many whistleblowers are left frustrated by the inconsistency of approach by regulators to their concerns.  The Directive represents a clear chance for the Government to put forward a sensible standard approach across the board.  The Directive requires member states to have regulatory bodies who engage with whistleblowers in the industry, sector or profession they regulate.  These standards should include how these regulators receive whistleblowing disclosures, maintain confidentiality, provide feedback and follow up on any disclosures made.

D)  New provisions to protect whistleblowers from liability. Whistleblowers do not only face victimisation in the workplace but sometimes legal threats outside the protection offered by PIDA through employment law.  This can come in the form of breach of confidence, defamation, data protection or copyright law.  These laws are often designed to protect commercial information or sensitive information for legitimate business reasons or the interests of the general public, but there is also a danger that such offences can be misused.

 

E) Introduction of legal aid for Whistleblowers. Currently there is no legal aid for whistleblowers seeking to bring employment claims (except when discrimination matters are also engaged), and the Government should follow the Directive and extend legal aid to whistleblowing. Without legal aid there is an access to justice issue for whistleblowers where a large proportion of whistleblowers lack legal representation.

Our research has shown that 41% of claimants were litigants in person.[3] As a result claimants are often at a significant disadvantage as the lack of legal representation has a real impact with 53% of claimants with legal advice losing their case while 68% lose as litigants in person.[4]  With the stress and strain of taking an claim under employment increased by worries over a lack of representation there is a danger that a lack of access to legal representation means a whistleblower is not in a position to able to escalate their concern to external bodies like the regulator, the media or an MP.  This undermines the whole public policy purpose of PIDA which is to reassure whistleblowers so they feel they can raise their concerns. Therefore, legal aid for whistleblowers is a public interest issue.

Conclusion:

 The Government has committed to build on workers’ rights after the UK’s exit from the EU[5] and to give Parliament a say on whether the UK should align with future EU employment law changes.  If we remain in EU, the Directive must be implemented by May 2021.  If we leave, the EU Whistleblowing Directive may prove to be the first test as to whether the UK keeps up with the EU’s levels of protection, or allows its workers to fall behind.

For further information please contact Andrew Pepper-Parsons, Head of Policy at Protect  Andrew@Protect-advice.org.uk or phone 020 3117 2520.

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