It has been a long-time coming, but the Government have announced their plans to review the whistleblowing legal framework. As our whistleblowing laws approach a quarter-century, this review is well overdue.
The review has been under consideration since 2017, where it was promised as part of the Anti-Corruption Strategy with a commitment to ensure robust protections for whistleblowers. However, the Government in their three-year review of the strategy admitted the whistleblowing commitments were “off track with deadline(s) expected to be missed and/or serious risk to delivery”.
Finally in March 2023 the Government announced a review of the UK’s whistleblowing framework. The terms of reference for the review are wide. The key research questions are:
- how has the whistleblowing framework facilitated disclosures?
- how has the whistleblowing framework protected workers?
- is whistleblowing information available and accessible for workers, employers, prescribed persons and others?
- what have been the wider benefits and impacts of the whistleblowing framework, on employers, prescribed persons and others?
- what does best practice look like in responding to disclosures?
In particular, the review will “examine evidence related to the definition of worker for whistleblowing protections” but will not look at protections outside the workplace.
The first phase of the review is conducting research on whether the current law is encouraging disclosures and protecting worker. At Protect we recognise the value of the current legal framework but are aware it is outdated and in need of reform. The law has not kept pace with the changes in the workplace, the protections for workers are complex and reactive, and the law says nothing about what employers should have in place to support whistleblowers.
Accidentally well timed?
Though tardy, the review could be seen as well timed. From an international perspective, most countries across the European Union have now passed laws implementing the EU’s Whistleblowing Directive that go further than the UK in many respects. These reforms include expanding the protection to more workers, to requiring employers and regulators to respond to whistleblowers in a certain way. Brexit means that the UK is not required to update its whistleblowing laws (but, as explained below, it may well do so). Anyone with a trading subsidiary in the EU should look carefully at the new obligations in each country. However, any organisation trading with the EU would be wise to take note of the very much stricter obligations placed on employers to have detailed procedures in place, as well as the sanctions for breaching whistleblower confidentiality. To ensure UK companies can continue to compete, and are seen as viable option for investment, it would be a good idea for the UK to apply similar standards to those already in place in EU
Domestically having updated whistleblowing laws is going to vital for effective enforcement of the new “failure to prevent fraud” offence. Those organisasions facing prosecution under the new offence will want to argue in their defence that they took all “reasonable steps” to prevent fraud. Effective whistleblowing arrangements should be key here – whistleblowers are one of the best defences against fraud and is the best way to alert the Police and the public where it fails.
Modernising the framework
Protect would like to see the legal framework reformed in the following way:
- Insisting that organisations take whistleblowing seriously by requiring them to set up whistleblowing arrangements that work. To date guidance alone has not been successful and will not make employers more responsive. In YouGov research Protect commissioned in 2021, only 43% of British workers know their employer has a whistleblowing policy, and 31% would know how to raise concerns if they felt they had to. We need to follow Japan and the EU and place employers under a legal duty to have whistleblowing arrangements in place, to provide training to staff and managers on to raise and respond to concerns.
- The definition of “worker” for whistleblowing purposes needs to be extended to include non-executive directors, charity trustees, self-employed contractors, job applicants and others currently denied a remedy if they are treated badly as a result of whistleblowing.
- The current legal protection is very reactive, it steps in providing compensation where a whistleblower is victimised, dismissed, or forced to resign for whistleblowing. We’d like a duty on employers to take positive steps to prevent whistleblower victimisation.
- Simplify the legal tests so that whistleblowers have a greater chance of success at tribunal. The test for dismissal should be brought in line with that of detriment – it should be automatically unfair to dismiss a whistleblower where their disclosure was a material (not the main) factor in the dismissal. The burden of proof in all whistleblowing cases should be on the employer. We would like to see legal aid for whistleblowers, many of whom cannot afford to bring legal claims, having just lost their jobs.
Finding time for reform
Politics might hamper legal reform, with a general election coming next year, there is likely to be limited time to conduct the research, propose reforms and then to change the law accordingly. It is highly likely that instead, this review shapes policy development in the future or recommends reforms that do not require primary legislation.
This is disappointing to say the least, but there is some good news. Extending the definition of “worker” for whistleblowing purposes wouldn’t need primary legislation and could ensure that all those in the workplace who speak up are protected.
We at Protect welcome the review, we don’t believe that further research will uncover new or different information. It would be far more effective for the Government to review the current research and get on with drafting reforms they feel will benefit whistleblowers and the public.
There is a risk that the review will further delay the tackling of wider issues such as proposals for the Office of the Whistleblower, and rewards, resulting in a lack of consensus on reform regardless of who is Government after next year’s election.