A report by the University of Greenwich examining employment tribunal outcomes between 2015-18 has revealed stark findings for women who whistleblow – that they are less likely to be represented or succeed.
The report, Making Whistleblowing Work, commissioned by the All Party Parliamentary Group for Whistleblowing, examined 600 whistleblowing cases. The findings highlight the well-established difficulties a whistleblower faces in bringing a case to an employment tribunal; the burden of costs and delays; as well as low success rate. According to the report, just 12% of whistleblowers whose cases go to preliminary hearing at Employment Tribunals in England and Wales are successful. However, these figures do not show how many settled, withdrew or resolved their cases.
Protect Policy Officer Laura Fatah said,
“The problem of accessing justice when you’ve lost your job, have no lawyer, and are facing a strong-armed employer, is sadly all too familiar to us at Protect. Going to Tribunal can be costly and stressful, as legal aid is not currently available for whistleblowers. Justice delayed is also justice denied – the wait for months or years for a hearing increases the stress and disadvantage whistleblowers face, and for many robs them of the chance of any realistic resolution.”
An employment tribunal can only provide a remedy after harm has been done. Protect are campaigning for measures to stop victimisation happening in the first place, by placing a duty on organisations to take pro-active steps to prevent whistleblowers becoming at risk of victimisation. Our legal reform also calls for a new body to ensure that the wrongdoing – the whistleblowing issue –is investigated.
The report found that female whistleblowers were less likely to have legal representation and more likely to suffer health problems. The complexity of whistleblowing law and proving a causal link between the whistleblowing and the dismissal means ET judges can tell nearly 25% of female whistleblowers that their whistleblowing was legitimate, but that their dismissal was not unfair. Our legal reform aims to lower this legal hurdle too.
Key report findings:
- Whistleblowing cases have a low success rate. Only 12% of whistleblowers whose cases go to preliminary hearing at Employment Tribunals in England and Wales are successful.
- Whistleblowers suffer more and longer than before. In 2018, nearly 40% of whistleblowers report going on sick leave, an increase of 15% since 2015. Whistleblowers also take longer than before to go to Tribunal. In 2018, nearly half of them took longer than two years, and more than one in five took longer than three years. Post Covid this is likely to almost double because of the backlog with Employment Tribunals now booking new hearings from February 2022.
- Legal support matters for whistleblowers but less whistleblowers than before have access to legal representation. Whistleblowers are getting less expert support at Employment Tribunal than ever before. More whistleblowers self-represent than get legal representation. In contrast, employers secure more expert legal representation than ever before.
- There is an important gender dimension for whistleblowers. Compared to male whistleblowers, female whistleblowers are:– more likely to report health issues
– less likely to have legal representation
– even when the judge upholds the protected disclosures, they are less likely to see their unfair dismissal claim upheld
- Whistleblowing cases commonly include a discrimination claim, yet those are the least successful whistleblowing cases.
The research highlights whistleblowers are still facing a tough time for speaking out and suffering more and longer than before and legal reform and access to justice are urgent matters if we are to make whistleblowing work in the UK.
Read about Protect’s campaign for legal reform of PIDA