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Misidentified whistleblowers – falling through the cracks

Whistleblowing serves a vital public function. It ensures that public interest wrongdoing in the workplace is called out, resolved and protects not only workers and employers but the public at large. Whistleblowers like Jonathan Taylor[1], Chris Day[2] and Clare Gilham[3] have helped expose issues of international corruption, poor patient care and failures in the justice system.

But whistleblowing is not an easy task.

Every day on the Advice Line, we hear from workers who are fearful of raising concerns because of potential retaliation from their employer or co-workers. It is a difficult decision to speak up against wrongdoing and workers often face a dilemma in deciding how and where to raise concerns. It can take time for a whistleblower to trust their employer or regulator before raising a concern. Where a whistleblower suffers any negative treatment for raising public interest wrongdoing, they may be able to bring a legal claim under the Public Interest Disclosure Act 1998 (PIDA).

But what about people who are still considering whether to raise a concern at all, or those who are mistakenly identified as a whistleblower by their employer?

As the law stands, there is no protection for these individuals. PIDA only covers those workers who actually speak up, making a ‘disclosure’ against wrongdoing. The law offers no protection for those who have witnessed wrongdoing at work and are investigating how to raise that concern in the most effective way. Less still, protection for someone who the employer mistakenly believes has blown the whistle, or wants to silence, because the employer thinks they may do so.

Protect says this is an unsatisfactory position. It leaves vulnerable those workers who are quite rightly weighing up their options and deciding how best to blow the whistle, as well as those who may be poorly treated – despite not saying anything.

A recent case in the Employment Tribunal puts this into context: Bilsbrough v Berry Marketing Services Ltd.[4] Mr Bilsbrough raised concerns about a potential data protection breach to a director of the company, rather than to his line manager. When the line manager found out about this, she chastised Mr Bilsbrough. He objected to this and told a colleague that he would “take the company down”. He began to research how to make a whistleblowing disclosure to the Information Commissioner’s Office. The colleague informed the employer, leading to Mr Bilsbrough being suspended and later dismissed. The suspension letter linked his suspension to the fact that he had researched ways of making a protected disclosure.

In a victory for whistleblowers, the employment tribunal found in Mr Bilsbrough’s favour. It decided that whistleblowing law must apply to a worker who takes preparatory steps to make a disclosure and is then treated poorly by the employer because it is believed that the worker was considering making a whistleblowing disclosure. As such, Mr Bilsbrough’s suspension was a detriment, as a significant reason for it was his researching. To find otherwise would have a “chilling effect” on whistleblowing.

But Bilsbrough v Berry Marketing Services Ltd was a first-instance judgment which means that it does not have to be followed by subsequent tribunals faced with deciding similar cases.

Protect’s draft whistleblowing bill calls to widen the legal protection and Clause 5 of our bill states that an employer must not discriminate, harass or victimise any individual because it appears to the employer that the individual has made or may make a protected disclosure.[5] The language of discrimination is already used in whistleblowing regulations for NHS employers and widely understood by workers.[6]

Protect’s whistleblowing bill, if enacted, would provide legal protection for those who are mistakenly identified as a whistleblower or who are considering whistleblowing. Tribunals would no longer have to weigh up cases by relying on complex human rights arguments made by  lawyers – there would be a clear statutory rule which could be applied consistently. You can read more about Protect’s proposals for legal reform here.

 

[1] https://whistleblowingnetwork.org/News-Events/News/News-Archive/Call-on-Monaco-to-Withdraw-Whistleblowing-Arrest-W

[2] https://protect-advice.org.uk/guest-blog-damned-if-you-do-damned-if-you-dont/

[3] https://www.bbc.co.uk/news/uk-50067863

[4]  ET/1401692/2018. You can read the judgment here: https://www.gov.uk/employment-tribunal-decisions/mr-james-stuart-bilsbrough-v-berry-marketing-services-ltd-1401692-2018

[5] Protect’s Whistleblowing Bill, Clause 5. See here.

[6] The Employment Rights Act 1996 (NHS Recruitment – Protected Disclosure) Regulations 2018.