In a disappointing judgment, the Court of Appeal has said that job applicants are not protected if they blow the whistle, and in doing so has thrown the ball firmly back into Parliament’s court to decide who is, and who is not, a whistleblower. More positively, the Court restated the value of whistleblowing and noted the purpose of the law is “to protect the public interest by ensuring that information about wrongdoing, or threats to health and safety or the environment, could be disclosed”
This case is the latest in a long line of court actions brought by individuals who spoke up and found themselves unprotected (see history below). Whistleblowing law was passed back in 1998 having been rushed through Parliament as a private member’s bill with Government support. Arguments about who should and should not be protected were limited. And 25 years later, the workplace has changed. The “gig economy” has introduced many more insecure and precarious jobs, and there’s been a big rise in self-employment (some of it bogus).
As a charity with 30 years’ expertise on whistleblowing, Protect intervenes in key appeal cases to bring public policy arguments before the courts. But we don’t think it should be up to individuals to bring claims to challenge and extend the law with all the stress and cost this places on them. It would be better if Parliament took the decision to extend whistleblowing protection in a consistent and fair manner. In Protect’s view, whistleblowing protection should cover anyone in a work-related context who might see harm and should be encouraged to speak up.
The current ruling may send a chilling message to would-be whistleblowers. The law will stand by you only in your current job – your future employer can turn you down, simply because you once had the courage to speak up. But worse, the law is inconsistent as anyone who applies for a job in the NHS can claim whistleblower protection. This was a good change, introduced in 2015 following Sir Robert Francis’ Freedom to Speak Up review to improve the culture of the NHS and better protect patient safety. But the law protects everyone who applies to the NHS, including those in admin, finance or premises roles – some far removed from patients. Is it fair that some jobs are better protected than others?
In our submissions, we drew attention to a number of cases that have come to us through our Advice Line where whistleblowers have been effectively “blacklisted” and unable to work in their chosen profession again. Employers can – and do – effectively discriminate against known whistleblowers. This is despite the evidence that whistleblowers can bring valuable information to light, saving lives and livelihoods, and protecting reputations and finances.
We are hopeful that the Employment Rights Bill, currently going through Parliament, will provide an opportunity to debate once again who should be protected. It isn’t hard to do – across Europe the law provides a non-exhaustive protection to include self-employed people, non-executives and volunteers. Labour promised to strengthen whistleblower protections before coming to power last summer in its “Make Work Pay” document – this would be an easy way to make a big change.