The Government has published legislation it describes as the ‘biggest package of workplace reforms for over 20 years’ – implementing 51 of the 53 recommendations of the Taylor review into UK modern economy workplaces.
Whilst welcomed – Protect see a missed opportunity for workplace reforms for whistleblowers.
The government review into working practices in the modern economy – led by Matthew Taylor, chief executive of the Royal Society of the Arts, looked at seven key recommendations including how a worker was defined, and whether sick and holiday pay could be enforced.
The first positive Government announcement: “Extend the right to a day one written statement of rights to workers, going further to include detail on rights such as eligibility for sick leave and pay and details of other types of paid leave, such as maternity and paternity leave”. We will be pushing the Government and Parliament to ensure that this statement also includes encouraging staff to raise whistleblowing concerns. This will help to alleviate low awareness among workers about their whistleblowing rights where 63% of UK workers either incorrectly stated there was no legal protection for whistleblowers or were unaware of the protection.
We also welcome the commitment “to quadruple maximum employment tribunal fines for employers who are demonstrated to have shown malice, spite or gross oversight from £5,000 to £20,000.” We would like this commitment to be extended so that Employment Tribunals are given the power to make recommendations to employers on how to improve their whistleblowing arrangements. For example, where a case before them highlights a training need for managers, a weak whistleblowing policy or poor board governance. These could all be powerful additions to the tribunal’s menu of sanctions.
The Government have made a commitment to “legislate to improve the clarity of the employment status tests to reflect the reality of the modern working relationships” but there is no detail as to what Parliament will be asked to consider in this area. We welcome the intention to clarify this difficult area – there are already inconsistencies in how “worker” is defined for whistleblowing rights compared with other employment rights. The legislation is an opportunity to extend protection for many individuals including job applicants, students in many professions, volunteers, non-executive directors. (For a full list see our infographic).
Protect Head of Policy, Andrew Pepper-Parsons said, “These Government reforms represent modest reforms at best for whistleblowers because there are key issues missing from the proposals that need to redress the balance of power between employer and employee. This is an opportunity to improve important legislation, give a better framework for employers and raise awareness amongst workers of whistleblowing and their rights.”
Key missing reform issues:
PIDA suffers from access to legal advice and representation is limited. These proposals do not address the issue that representation at tribunal can have a real effect on the outcome with many whistleblowers having to take their claim forward as a litigant in person. Our research found 68 per cent of those lacking representation lost their case, while this falls to 53 per cent with representation.
PIDA is silent on standards expected from employers. These are inconsistencies in how regulators deal with whistleblowers and PIDA provides little in the way of legal guarantees. This includes both in terms of what a whistleblower should expect if they approach a regulator with concerns or guidance to organisations they regulate (except the Financial Conduct Authority who have created rules for banks). We want to see real teeth in the proposals so that employers are placed under greater obligations to deliver better workplaces.
Legal threats to whistleblowers: There are a number of laws that make it an offence to disclose certain information (for example, Section 105 Utilities Act 2000). Such laws contain no public interest defence or gateway and will also mean that PIDA protection is not available. There is a worrying tendency for such laws to be used in the workplace as a means of suppressing concerns, pursuing or threatening whistleblowers. Such practices undermine the policy aims of PIDA to ensure concerns are raised by workers at the earliest opportunity. Legislative reform provides an opportunity to address this legal loophole.
No proposals to confront the misuse Non-disclosure agreements (NDA’s): It may well be that there are separate Government proposals in the pipeline on this issue, yet this is an obvious missing elephant. For whistleblowers 43J of PIDA makes it clear that a whistleblowing concerns cannot be gagged: the legislation allows individuals to raise public interest concerns outside the employment relationship where they would be protected under PIDA, but this is a little known or used section of the law. Yet due to low awareness around whistleblowing rights among UK workers this is often missed. Alongside a reference to whistleblowing rights in the day one initial statement given to employees, we also propose clearer wording in law on this right, and a requirement on lawyers who are advising whistleblowers about settlement agreement to explaining this right more clearly.