The recently published Review of the Whistleblowing Framework aimed to assess the effectiveness of existing whistleblowing policies and structures, identify barriers to effective whistleblowing, and explore opportunities for improvement. Originally commissioned by the Sunak government in 2023, the review took into account voices and opinions from the public, private, and non-profit sectors (including Protect), with a focus on improving transparency, accountability, and protections for those who report wrongdoing.
While making no concrete recommendations, nonetheless the review reveals significant gaps in how whistleblowers are protected and supported. When confirming his department would publish the review earlier this year, the Employment Rights Minister, Justin Madders, who said “it will be a starting point for further work in this area.”
Through our work with whistleblowers and the in-depth research we have commissioned, we know our current whistleblowing framework is flawed and out of date. This summary outlines the key findings and opportunities for change.
Expanding scope
A key theme to come from the review regards extending the whistleblowing protection to more types of workers, such as gig economy workers and contractors. The reviews highlighted concerns over “the issues related to the definitions themselves”, with one focus group noting “that the narrowness of the current ‘worker’ definition is potentially a barrier to organisations establishing a whistleblowing or speak up culture”.
This chimes with what we have been arguing for years; that the law currently is too restrictive in only granting legal protections to those defined as “workers” under employment law, leaving out many whistleblowers who do not fall under the definition. We have been pushing the Government to expand whistleblowing protection to cover others such as self-employed people, job applicants, sub-postmasters, non-executive directors and trustees, and trade union representatives.
An unbalanced system
The review also highlighted the difficulty of winning a claim of automatic unfair dismissal under the current system, as it “places the burden of proof on the worker to show that they made a protected disclosure and suffered a detriment or dismissal because of their disclosure, which may be hard for the worker to establish in practice”.
In the well-known case of Kong v Gulf Bank International, Ms Kong blew the whistle on the bank breaching regulations – which turned out to be correct. However, she was not found to have been automatically unfairly dismissed for her act of blowing the whistle. Rather, it was the upset caused by her challenge to the banks’ senior managers and the breakdown of her working relationships that was found to be the main reason: whistleblowing could be “separated” from the breakdown of relationships which followed.
This is another issue which Protect has been at the forefront of pushing for change. One of several amendments we put forward to the Employment Rights Bill would change the burden for workers to have to prove that whistleblowing was “if more than one, the principal reason” for their dismissal to instead be “one of the reasons”.
The need to investigate when whistleblowers raise concerns
This review makes clear that many “organisations do not have internal frameworks” and that “issues can arise where organisations do not respond appropriately, such as not undertaking an investigation”. The financial services sector was cited in the review as having benefited from whistleblowing arrangements being a requirement for firms, with a regulator from the sector noting workers were increasingly willing to raise concerns.
This has been a central pillar of our campaigning this year which has focused on the need for employers to be legally bound to investigate when whistleblowers raise concerns. We have managed to secure an amendment to the Employment Rights Bill – and have high hopes that this will make it through the Parliamentary hurdles to become law.
Conclusion
The review is useful in highlighting where the problems exist, but this should not be the end of the story. We need the Government to act on this analysis and to proactively support the solutions outlined by Protect.
The issues and challenges identified, if tackled head-on, would represent a major step forward in creating a more transparent, supportive, and accountable environment for whistleblowers. Strengthening legal protections, providing more comprehensive support, and fostering a culture of openness within organisations are central to the review’s findings.