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. 

With the changing of the seasons, the government’s landmark Employment Rights Bill has now bounced from the Commons to the Lords as it continues its progress through Parliament. After a highly scrutinised passage through the Commons that led to more than 200 pages of amendments tabled, the Bill will be debated in the Lords for the first time on Thursday 27 March. 

This Bill provides a critical opportunity to improve whistleblowing protections for everyone in the workplace and revamp the way employers address and manage whistleblowing.  

Amendments to the Bill 

A total of 264 amendments were tabled in the public bill committee in the House of Commons. The 149 government amendments, put forward following consultations, were agreed to by the committee but all 115 opposition amendments were either withdrawn, not moved, or disagreed to in a division of the committee. 

We proposed three amendments to the bill. 

The first two centred on scope and test: expanding the scope of who receives whistleblower protections under law to include categories such as self-employed contractors, job applicants and trade union officials, and an amendment to change the test for dismissal. 

These amendments were picked up by two Liberal Democrat MPs, Steve Darling and Sarah Gibson, who proposed them in committee. These did not pass but they did receive a response from the Minister for the Employment Rights Bill, Justin Madders MP. 

He argued against amending the automatic unfair dismissal test as he said it would be “very difficult to accept the new clause without further consideration of the impact, because the test applies for a whole series of direct tribunal claims for automatic unfair dismissal”. We dispute this consequence; it’s been long established that whistleblowing protection is different from other areas of employment law. The Government can change whistleblowing law in this area without it impacting on other areas of employment law. 

On the scope amendment, the Minister couldn’t accept it because of “the plethora of unintended consequences and knock-on effects”, yet we’re not convinced there would be a floodgate of claims because of this change, while the risk is that without this protection some in the workplace won’t speak up. However, the Minister did concede that “[we] are aware of the long-overdue requirement to look at whistleblowing law” and stated that his recent meeting with Protect was part of that conversation. We took this as hugely encouraging – and are following up directly on his comments. 

A Duty to Investigate 

Our third amendment focuses on introducing a duty on employers to investigate whistleblowing concerns made to them. This was taken up at the Report stage by the Labour MP Alex Sobel who stated that “The status quo provides only an after-the-event remedy for whistleblowers, and this new clause would ensure that there are channels for whistleblowers from the start.”  

During the debate, Julian Smith MP, a former Conservative Cabinet Minister, asked if the government would consider adopting the amendment, to which Justin Madders’ responded by saying the Government has “begun to consider it, as [whistleblowing] legislation is now a quarter of a century old and needs looking at”. 

Whilst none of these amendments have yet been accepted, we were pleased that the Minister accepted that whistleblowing law needs updating. 

However, one of the most significant new topics introduced to the bill through new clauses and amendments was the increase in time limits within which people can make a claim to an employment tribunal (for almost all claims), from three to six months. This has huge significance to whistleblowing and whistleblowers – improving their access to justice and their opportunity of seeking redress.  As yet, no change has been made to the very short time frame (7 days from the date of dismissal) to bring an interim relief claim. 

Steps forward 

With the Bill now moving forward in the Lords, we have further opportunities to press our amendments and build support amongst peers. With the Government accepting the need for change, we just need to hold their feet to the fire and keep on pushing. 

The government’s flagship Employment Rights Bill, rapidly moving throught the stages of Parliament, offers an opportunity to overhaul how employers and colleagues treat both whistleblowers and the how people raise concerns. We’re delighted to see sexual harassment will be added to the list of wrongdoing that can be raised and protected, and the extensions of time limits for workers to bring an employment tribunal claim go up from 3 months to 6 months.  Both changes will benefit whistleblowers.

Welcome as these changes are, they are not ambitious enough to strengthen whistleblowing protection which was a promise the Government made during the election.

The changes will not guarantee a response when whistleblowers raise concerns with their employer – this is a huge issue. Our new research, the Cost of Whistleblowing Failures, published in February 2025 found that across three scandals – Post Office Horizon, Lucy Letby/the Countess of Chester and the collapse of Carillion – whistleblowing failures cost the taxpayer £426m. In each scandal we found whistleblowers either ignored or not dealt with properly by their employer.

This is why we’re delighted that Labour MP Alex Sobel has tabled an amendment that would create a duty on all employers to investigate whistleblowing concerns raised by their staff. This approach has cross-party support from former Ministers including Baroness Hodge of Barking, Alastair Carmichal MP and Sir Robert Buckland as well as group of high-profile whistleblowers including the Yorkshire cricket racism whistleblower Azeem Rafiq. In addition six of the UK’s leading whistleblowing and anti-corruption organisations are supporting the amendment.

We’re also pleased to see the Liberal Democrat Steve Darling MP champion the change we have been advocating to simplify the legal test for automatic unfair dismissal in whistleblowing cases. Too many whistleblowing cases are lost because employers can point to the breakdown of the employment relationship as the main reason for a dismissal, rather than it being caused by the whistleblowing itself.