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Speaking up, listening up. The need to change UK whistleblowing law.

This article is a summary of the speech delivered at ‘Let’s Fix Whistleblowing’ launch event on 29th April 2021. To see highlights from the launch click here

Today we are surrounded by the most tragic and catastrophic example of the failure to listen to a whistleblower, Dr Li Wenliang, when he said he was concerned about the emergence of a new virus.

Of course, we don’t need such extreme cases to understand that whistleblowers can make a difference every day, in every walk of life. Speaking up can stop harm, and protect the public.

Yet how can we expect people to speak up to stop harm if the law doesn’t always protect their interests as fully as it should?   That’s why Protect, the UK’s whistleblowing charity, is this week launching a campaign “Let’s Fix UK Whistleblowing Law”.

Research from Protect’s legal Advice Line into whistleblowing during Covid found that 41% of whistleblowers were ignored by their employers. Even when raising public health and safety concerns.

And shockingly, 20% of whistleblowers speaking up about Covid related concerns went on to be dismissed.

The consequences are bleak.   An office worker told us that their office wasn’t Covid-safe and that a risk assessment hadn’t been carried out. She raised concerns with her employer and was told to stop making trouble. She went to work.  She caught Covid, four of her co-workers caught Covid, and she was seriously ill and hospitalised.

It’s not an isolated case. Last year we handled more cases than ever before in our history.

With the right advice from Protect’s legal team, many workers can be guided to safely raising their concerns, making sure that the public interest is addressed, while minimising the risk of retaliation to the whistleblower.  But all too often the law doesn’t provide the protection to safely speak up.

What was once some of the best legislation in the world is now over 20 years old and needs updating.

The current law doesn’t reflect the modern workforce.  The emergence of the gig economy, growth of internships and placements, more self-employed contractors – has proved challenging for the world of employment rights.

Many people calling our Advice Line – from charity volunteers to non-executive directors – have no whistleblowing protection.   But our view is simple – if you are in the workplace and you see a concern, we want you to raise it.  And if you’re then treated badly as a result, you should have a remedy.

So, we need to extend the scope of whistleblowing protection to all those in the workplace who need it.  We shouldn’t have to leave it to District Judge Gilham to spend seven years pursuing a legal claim for judges to be granted whistleblowing rights.  And neither should Junior Doctors have to fight for whistleblowing rights to raise concerns.

We also have to improve whistleblowers’ access to justice.   If you judge the success of the tribunal system by the experience of its users – and I think you should – it’s failing whistleblowers.  The hurdles for a whistleblower are too high.  It is a complex piece of law, and difficult to navigate on your own.

Yet too many whistleblowers cannot afford legal representation, and have no access to legal aid. Judges should have powers to recommend employers take remedial action when whistleblowers are found to have been treated badly.

Improving how whistleblowers can assert their rights would be a major step forward. But the real change we want to see is a shift in the law away from providing an after-the-event remedy towards positive duties on employers.

Whilst there are many cases of employers developing best practice, too many workplaces – often beyond the heavily regulated sectors – have no standards at all.

We saw how difficult this was when workers in smaller organisations came to our Advice Line wanting to raise concerns about furlough fraud.   This is a huge public interest issue, with HMRC estimating £3.5 bn has been claimed in error or fraud, and the fastest growing issue we’d ever experienced on our advice line.

Workers were being put on furlough and asked to return to the office as volunteers.  Others were told to carry on while their employer claimed government money – one even told us they didn’t know they were on furlough until they saw their pay packet.

But many of these people had no way to raise concerns with their employer -no channels to whistleblow at all.  As a result, they went straight to the regulator, or worse, they kept quiet.

Without effective arrangements, people won’t speak up to their employer.   Time after time public inquires have shown that when things are going wrong, someone inside the organisation knew but was too afraid to speak up, or spoke up to the wrong person, or spoke up and were ignored.

Without a channel to raise concerns, serious issues can be missed. Lives and livelihoods are lost. So, we think there should be a general duty on employers – with 50 or more staff – to put arrangements in place.  This isn’t burdensome regulation – it is in everyone’s best interest. 

Whistleblowers should be seen by employers as assets – they are the eyes and ears of an organisation. They can be a great form of risk assessment, stopping small harms before they become serious – with the reputational, financial, regulatory and public health risks that can ensue.

From Wuhan to Westminster, we want to encourage people to speak up, and we want to encourage employers to listen when they do.

We need to fix UK’s whistleblowing law – protecting more people, improving access to justice, and putting a positive duty on employers. It’s in everyone’s interest to do so.

By Elizabeth Gardiner, Chief Executive of Protect.

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