In this long read Protect Legal Director, Sybille Raphael, responds to recent attempts to scrap the Public Interest Disclosure Act (PIDA). She explains why we oppose this move and why it is vital we continue to ensure whistleblowers in the workplace are protected by employment rights.
There have recently been proposals to repeal PIDA (the Public Interest Disclosure Act) and dissociate whistleblower protection from employment rights altogether (1).
Protect, the UK whistleblowing charity, was established in 1993 to “promote ethical standards of conduct and compliance with the law”.
When Parliament first addressed the issue in the 1990s, it considered that what was needed more than anything was protection of those who blow the whistle at work.
This is why the law that was passed in 1998 was incorporated as Part IVA of the Employment Rights Act 1996 (2). Unusually for an employment bill, this Private Member’s Bill enjoyed cross party support.
Why should workers be the ones specifically protected by the law?
Workers are the eyes and ears of an organisation; they identify problems from within. They are most likely to be the first to spot concerns, and to recognise the risks of wrongdoing. They need protection because they risk far more when they blow the whistle than others do: their job, their livelihood, their career.
And when things go wrong, when it is the messenger who is shot at, and the whistleblower is victimised for having blown the whistle, this retaliation takes place in a complex web of workplace rights and power structures.
Lastly, workers’ protection was developed because Parliament was keen to promote ‘responsible whistleblowing’ and encourage workers to blow the whistle to their employer, who are most often the best placed to address the problem quickly and efficiently.
Indeed, it was thought that whistleblowing was such an important employment right that it was made a day-one right. There is no requirement of two years of service with an employer, as there is for many other employment rights.
This makes sense: our research shows that it is often new recruits who spot malpractice – a fresh pair of eyes or ears may uncover a risk or culture that has become “normalised” for longer standing staff.
Practically, if it were for a new whistleblowing regulator to decide whether whistleblowing took place (with its own appeal process), how would it work for Mary (not her real name), who called the Advice Line last month the day after she was dismissed?
She was an accountant who spoke up about significant meddling with the accounts coming from the very top of the company. Would she have to pause her unfair dismissal claim, go to this new body first to determine whether she did indeed blow the whistle and then appeal to this new Tribunal if she disagreed with the OWB findings?
We know that she already faces a wait of approximately 2 years before her case will be decided in the Employment Tribunal. That is far too long already without adding a whole new process to determine whether she blew the whistle in the first place!
Rather than decoupling whistleblower protection from employment law, our own draft whistleblowing bill aims to harmonise them. We suggest for instance that whistleblowing follows the discrimination and harassment framework, which is much better understood by all.
PIDA can no doubt be improved, and our legal reform campaign calls for standards on employers (3), more effective regulators, better access to justice, and increasing of the scope of protection to all those who perform services for or on behalf of the organisation (4).
But PIDA has also helped countless whistleblowers and been used as a template by many countries across the world (5).
In sectors such as financial services, every regulated firm now needs to put in place effective whistleblowing arrangements – including training staff and board level champions, as well as having to report to the regulator if they lose a whistleblowing case at Tribunal.
The deterrent effect of these laws should not be underestimated – we could not have imagined when PIDA was introduced that there would be whole teams of staff dedicated to investigating concerns and protecting whistleblowers in financial institutions.
We have many criticisms of the Employment Tribunal and many suggestions for how the system could be rebalanced in whistleblowers’ favour. But you cannot measure the success of the law by how many succeed in tribunal.
Whistleblowing success rates do not differ much from other employment tribunal claims, and no attention is paid to how many claims are started but successfully settled – which simply could not happen if there was no right to bring a claim.
Some of PIDA’s features were definitely revolutionary at the time and have proven their worth. For instance, the fact that the wrongdoing need not be serious. ‘Responsible whistleblowing’ is about encouraging workers to raise concerns as early in the process as possible, to give organisations the best chance to address issues quickly and efficiently.. There is a low threshold for the test of “reasonable belief” and reporting well-founded suspicions or risks that a wrong may happen can count as whistleblowing.
The law does not insist a whistleblower raise a concern internally first either. PIDA encourages whistleblowers to raise their concerns internally to their employer, and externally to a ‘competent authority’ or ‘prescribed person’ – and these are the easiest routes to get protection.
But the law recognises that in some circumstances, you could (and maybe even should) bypass these. Only in some circumstances though: additional tests are applied to any wider disclosure. In particular, when a whistleblower goes to the press or public, they must demonstrate that it was reasonable in all the circumstances for them to make this wider disclosure. This ‘tiered approach’ works in practice
The disclosure does not need to be original information either. Under PIDA (s43L Employment Rights Act 1996), whistleblowers are encouraged to come forward with their disclosures whether or not the information is original – it does not matter if the person receiving it is already aware of the information.
This is not the case for many reward systems, and it is also not available under all whistleblowing regimes. Most whistleblowers have a lonely journey, raising their concerns in isolation. It is unsurprising if an employer, regulator or journalist receives the same information from two sources, who may be entirely unaware of each other’s disclosure.
Finally, while we at Protect would welcome a new Office of the Whistleblower to set standards for employers’ whistleblowing arrangements, too much store can be set on a structural reform.
As Lord Nolan explained “All organisations face the risks of things going wrong or of unknowingly harbouring malpractice. Part of the duty of identifying such a situation and taking remedial action may lie with the regulatory or funding body. But the regulator is usually in the role of detective, determining responsibility after the crime has been discovered. Encouraging a culture of openness within an organisation will help: prevention is better than cure.” (6)
Whistleblowing protection should be strengthened and harmonised with other employment protection.
But none of the above calls for a repeal of a piece of employment law that daily helps scores of whistleblowers, gets very little criticism from employers (at least compared with some other part of employment law) because they understand the business benefits that a positive speaking up culture brings, and manages the unusual feat of uniting MPs from across the political spectrum.
Endnotes
1 – A repeal of PIDA and its replacement by an independent Office of the Whistleblower is proposed by the APPG on whistleblowing in their 2022 report. It can be found here.
The APPG on Anti-Corruption & Responsible Tax and the APPG on Fair Business Banking do not expressly recommend repealing PIDA but suggest a new Office of the Whistleblower would act to ‘prevent and address retaliation against those with the courage to speak up: Enact a Whistleblowing Bill to establish an Office for Whistleblowers to provide protection to every citizen, and proper compensation where applicable, for those that speak out against or uncover economic crimes and other wrongdoing.’
Whistleblowers need one central place where they can go for advice and to pass information to regulators and law enforcement. An Office for Whistleblowers would set, monitor and evaluate standards as well as acting to prevent and address retaliation against those with the courage to speak up. See the APPG Economic Crime Manifesto here.
2 – The EU whistleblowing directive which has now been implemented in nine member states talks of “work-related activities”. It expressly includes self-employed, shareholders, non-executive directors, trustees, volunteers, and trainees – unlike PIDA, still wedded to the concept of “worker”.
3 – The directive sets up standards of what organisations need to do when a worker blows the whistle. PIDA is only concerned about ‘after the event’ retaliation. There is no requirement for organisation in the UK to have anything around whistleblowing processes. The YouGov research we commissioned last spring showed that only 31% of workers knew how to raise a concern at work.
Our survey from our Advice Line shows that 41% of whistleblowers feel ignored when they have raised their concerns and 20% report being dismissed
In the EU, employers with 50 or more workers now have to establish internal arrangements with strict deadlines to acknowledge and feedback on the concerns. Impartiality, confidentiality and clear details on how to report externally to a relevant regulator are all required.
And it’s not just in the EU. There are similar provisions, in Australia , some US states, Hong Kong and soon in Japan .
4 – Using the definition already found in the Bribery Act 2010
5 – Ireland, France, Australia to cite a few, all adopted whistleblower’s legislation after PIDA with some features clearly copied from PIDA
6 – Second report of the Committee on Standards in Public Life quoted by Lord Borrie Hansard 11.4.1998 col 889