In this blog Protect Legal Adviser Gabriel Radonich details the legal tests for media whistleblowing, and the challenges facing civil service whistleblowers.
In December 2021, in the wake of the chaos surrounding the Taliban takeover of Afghanistan, Josie Stewart became a whistleblower. A senior official at the Foreign, Commonwealth and Development Office (FCDO), she had become concerned that the government was putting lives at risk by mishandling the evacuation of Kabul. Josie decided to go to the media after a junior civil servant, Raphael Marshall, reached out to the Foreign Affairs Select Committee with evidence of Foreign Office failings. Feeling “humbled” that a junior colleague had been brave enough to speak out, she gave an anonymous interview and leaked emails to the BBC. Like so many other whistleblowers, she paid a heavy price for speaking out: the BBC accidentally revealed her identity by publishing unredacted emails, and she was then dismissed.
In September, an Employment Tribunal will decide whether that decision to dismiss was unlawful under the Public Interest Disclosure Act (PIDA). The act gives rights to workers not to be dismissed or victimized because they have spoken up about wrongdoing in the public interest, making what the law calls ‘protected disclosures’. Disclosures to the media are much less likely to be protected than disclosures to the employer or to a regulator. The tests vary depending on the whistleblower’s situation and whether or not they have already alerted their employer. In Josie’s case, she will have to establish, among other tests, that the disclosure related to an ‘exceptionally serious failure, or that she had a reasonably belief that her employer would destroy evidence or suffer victimisation if she raised her concerns. The disclosure must be ‘reasonable in all the circumstances’.
Case law is clear that ‘exceptionally serious’ wrongdoing is a high bar. A claimant who handed documents to the police in relation to a murder was found to meet this test in Herron v Wintercomfort (ET, Case No. 1502519/03), for example. As too did an official who revealed in an email that UN contractors engaged in anti-sex trafficking operations in Bosnia were themselves visiting brothels, in Bolkovac v DynCorp (ET, Case No. 3102729/01). A judge is likely to consider the seriousness of harm, the number of potential victims, and the identity of the person responsible for the relevant failure. Josie and her lawyers may argue that the UK government’s failure to act did meet this threshold by endangering the lives of thousands of Afghans threatened with Taliban violence.
The more complex test is likely to be whether Josie’s disclosure was ‘reasonable in all circumstances’. This test is highly fact-sensitive, and it is difficult to provide clear legal rules. In Collins v National Trust (ET, Case No 2507255/05), leaking a draft report to the press was held to be reasonable where it “enabled the public to obtain further specialist advice” in the face of an imminent risk. A judge will pay particular regard to the identity of the person to whom the disclosure is made: was it reasonable for the whistleblower to go to that particular person? Were the other steps they could have taken? The judge may consider it relevant that, at present, there is no external body that civil service whistleblowers can go to with concerns about wrongdoing or risk.
There are good reasons why the law incentivizes internal concern-raising over disclosures to the media, but what are whistleblowers to do when they know their whistleblowing will be met with inaction or victimisation? In a recent interview, Josie describes a “broken system” at FCDO, where officials were overruled for political reasons, or marginalized for speaking out. Furthermore, under the Official Secrets Act, it is potentially an offence disclose any information relating to security or intelligence. PIDA protections do not apply in such cases, and so whistleblowers can find themselves facing criminal liability for speaking out. In the wake of the Partygate scandal, and allegations of bullying against senior ministers, it’s clear that the civil service is failing whistleblowers, and reform is needed.
To repair the damage done to civil service whistleblowing, we want to see an independent statutory commissioner, with broad powers to investigate public interest disclosures, as recommended by the Law Commission. There should also be a public interest defence for whistleblowing on national security issues, to ensure the law does not make criminals of those who try to shine a light on wrongdoing in the public interest.
It is in everyone’s interest that workers are empowered to speak out when they witness risk or malpractice at work, and government should be leading the way, not lagging behind. With a culture that punishes or ignores whistleblowers, and no mechanism to raise concerns outside the civil service, wrongdoing will continue to go uninvestigated and unpunished.
Written by Gabriel Radonich