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Protect’s draft Whistleblowing Bill will stop victimisation at source

Amjad Rihan raised concerns about his employer laundering money and was branded a troublemaker and dismissed. Howard Shaw raised concerns about the Met Police’s interview process and was removed from his unit and faced unfounded disciplinary action. Shahmir Sanni blew the whistle on Vote Leave’s campaign tactics and was outed as gay by Downing Street and dismissed.

Under the Public Interest Disclosure Act 1998, whistleblowers have the right not to suffer any detriment as a result of raising public interest concerns. Rihan, Shaw and Sanni should not have been victimised, bullied nor dismissed for taking the brave and difficult decision to raise workplace wrongdoing. The problem with the current legislation is that it only allows workers to bring a claim in the Employment Tribunal once the detriment has occurred. By this time, it is often too late.

More needs to be done to stop victimisation at source before it occurs. Protect’s new draft Whistleblowing Bill aims to improve the law in this area.

Primarily, our draft Bill will place a positive duty on employers to actively take all reasonable steps to prevent detrimental treatment of whistleblowers or to stop detriment immediately if it begins to occur. This would mean employers would need to be far more proactive in terms of preventing managers, co-workers and third parties such as suppliers from retaliating against a whistleblower. This duty will mean that whistleblowing or speak up procedures can no longer simply be a “tick-box exercise”. Employers will need to demonstrate that they have effective measures in place.

This is so important because fear of victimisation can impact on the ability of concerned workers to raise their concerns. Our joint survey with YouGov from 2018 showed that 23% of working adults would not speak up due to fear of reprisals - the most common barrier preventing workers from raising concerns. This means that victimisation is dangerous for the whistleblowing culture of any workplace; if other workers are aware of colleagues being victimised for speak up, then this suppress future whistleblowing.  By compelling employers to consider and implement procedures to specifically prevent victimisation, whistleblowers will feel more confident about coming forward.

A 2017 study by the Association of Certified Fraud Examiners showed that fraud is more effectively detected by tip-offs than internal auditing. Furthermore, research from Stubben and Welch in the USA has shown that firms which actively use their internal reporting systems are more likely to address concerns before they become larger problems which means employers face fewer legal claims. This not only reduces litigation costs for employers but also lowers settlement amounts. A new duty on employers will not be a burden on good organisations but instead will offer a competitive advantage as it will punish organisations that do not take whistleblowing or speak up culture seriously.

This new duty offers great protection for whistleblowers, employers and the public more generally.

By Kyran Kanda, Protect Adviser