At the ELA annual conference Protect Legal Director Sybille Raphael, delivered this speech, reflecting on the state of whistleblowing law, what needs to be improved to protect the interests of staff, employers and the public and why regulators are key to this.
The Public Interest Disclosure Act was passed in 1998, five years after Protect, the UK whistleblowing charity was established to “promote ethical standards of conduct and compliance with the law”.
It is not just compliance with the law that evolves over time. So do standards of conduct and what we mean by whistleblowing.
It used to be all about financial misconduct or patient safety. Now on our Advice Line, we hear about greenwashing and anti-trans discrimination. Since 2017, we have had a 100% increase in the proportion of harassment cases.[1]
The Me too and Black Lives Matter movements no doubt helped increase public interest in claims that were once seen as purely individual grievances.
Employers are to have a proactive duty to prevent sexual harassment. Regulators consider that ‘culture’ is part of their remit, including ‘speak up, listen up culture’ as the FCA puts it. We have come a long way from the time when disclosures were less likely to be protected if the whistleblower had a private interest in raising them.[2]
But our whistleblowing law lags behind in other aspects.
For a start, we need to expand the scope of whistleblowing protection. 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”.
We also need to address the imbalance of power between employer and employee. The directive reverses the burden of proof in whistleblowing claims and pushes national governments to provide sources of free and independent legal advice and assistance to whistleblowers.[3]
But maybe most significantly, 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.
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.[4] 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[5], some US states, Hong Kong[6] and soon in Japan.[7]
We badly need this for UK employers too.
Right now, for most workers, whistleblowing protection is just totally meaningless. Our law simply provides a remedy when an employer has failed to protect.
The Yougov research we commissioned last spring showed that only 31% of workers knew how to raise a concern at work.[8]
Our survey from our Advice Line shows that 41% of whistleblowers feel ignored when they have raised their concerns and 20% report being dismissed.[9]
This must change!
Unlike some, we do not think repealing PIDA and creating a whole new separate Tribunal system is the solution.
There is a reason why PIDA is part of the Employment Rights Act. Workers are the eyes and ears of an organisation, they identify problems from within and they risk far more when they blow the whistle: their job, their livelihood, their career.
Whistleblowing detriment takes place in a complex web of workplace rights and power structures.
And practically, if it was 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 and go to this new body first to determine whether she did indeed blow the whistle and then appeal to this new Tribunal?
We know that she already faces a wait of roughly 2 years before her case will be decided in the ET. That is far too long already without adding a whole new process to determine whether she blew the whistle in the first place!
Indeed, 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.
Our campaign focuses on three key areas:
- making sure all UK workers are protected – including NEDs, volunteers and trustees,
- standards on employers and regulators, and
- access to justice.
That is what I want to finish with. Improving or creating new rights is only the start of the journey. Rights mean nothing if they cannot be accessed.
Because of the power imbalance between the organisation and the individual whisteblowers, it is often extremely difficult to obtain any kind of redress, let alone ensure the concern is addressed.
We advocate for more resources for regulatory bodies who we believe are the best placed to investigate and address concerns.
And we think all regulators should embrace whistleblowing – including our very own SRA, who – to my distress – is not even a prescribed person at the moment. [10]
We also think the litigation should be made easier. One of the current bug bears of PIDA is the 3 months’ time limit for the act you want to complain about. But whistleblowing is almost never a single act, it is a journey.
Take Ms Kong, whose case will be heard by the Court of Appeal at the end of the month and in which Protect will intervene. She was Head of Internal Audit and blew the whistle to her Head of Legal on new products that she thought were not legally compliant. The Head of Legal took this very badly and complained to the managing partners. Ms Kong was dismissed a few months later.
The Tribunal agreed her dismissal was unfair but was not convinced it was primarily for whistleblowing reasons.
She lost her automatic unfair dismissal claim. The Tribunal said she would have won her whistleblowing detriment claim but it was out of time when she started proceedings after her dismissal.
At the very least, we think the current time limit of 3 months should be extended to 6 months, and that the near impossible deadline of 7 days in interim relief claims to 21 days.
I want to finish with the words of a whistleblower in the Shrewsbury maternity scandal:
‘If I could say anything to the families it would be that there were people who tried to make changes, we tried to escalate our concerns and be heard but every process we used was set up not to acknowledge our voices or the problems we were highlighting. We were ignored and made out to be the problem ….’
This is what drives us at Protect. We want to change this.
To view our draft bill which aims to fix whistleblowing law, see here.
To support our campaign to fix whistleblowing law click here.
Endnotes
1 Proportion of harassment cases in overall new cases. See also the fact that bullying, sexual harassment and discrimination – has jumped from 8% of our total Advice Line cases in 2020 to 14% in 2021. The top 5 concerns were working practices (25%), ethical (abuse of authority, data protection, nepotism…) and Covid-19 (both 14%), abuse of vulnerable person (11%) and financial malpractice (10%)
2 Protection used to depend on the disclosure having been made in good faith until the Enterprise and Regulatory Reform Act 2013
3 once the whistleblower demonstrates that they reported breaches and suffered a detriment the burden of proof shifts to the person who caused the detriment, they must demonstrate that the detriment was not linked in any way to the whistleblowing and that the alleged detrimental actions taken were based on justified grounds.
4 each organisation with 50+ workers have to establish internal channels for whistleblowers, even if they are part of a group with other organisations. Though (e.g.) subsidiary companies can share resources with its parent company provided that the subsidiary company is medium-sized, has 50 to 249 workers. The Commission explained that this is to ensure efficiency for the organisation, particularly proximity for the whistleblower and easier accessibility – especially if they request a face to face meeting, or if suppliers are using the whistleblowing arrangements.
5 In October 2021, Australia’s corporate regulator, the Australian Securities and Investments Commission (ASIC), wrote an open letter to public companies urging them to review their whistleblowing policies to ensure they are compliant with the Corporations Act. ASIC has advised that many policies it has reviewed do not fulfill the objective of encouraging employees to report issues and/or do not accurately present the information required to be included.
6 The Stock Exchange of Hong Kong Limited amended its the Corporate Governance Code to include provisions on the implementation of a whistleblowing policy and system for employees in tandem with anti-corruption policies
7 Japan’s Whistleblower Protection Act will also mandate organizations of a certain size to implement whistleblowing systems as of next month
8 And 84% support our call for ET judges to have more powers, see here.
9 When it comes to victimisation there is a myth that all whistleblowers are victimised, this isn’t always the case where around 35% of whistleblowers report neither a positive or negative experience, yet the remaining around 60-70% are victimised by manager/co-workers, resigned or are dismissed from their role.
10 Prescribed persons are organisations and individuals that a worker may approach outside their workplace to report wrongdoing A worker will potentially qualify for the same employment rights as if they had made a disclosure to their employer if they report to a prescribed person, Section 43F ERA. For a list of prescribed persons, see here