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Why is the Government waiting to reform UK whistleblowing law?

The Government is looking at evidence to conduct a review, so here are 4 compelling arguments from Protect for why reform is needed.

‘We do recognise how valuable it is that whistleblowers are prepared to shine a light on wrongdoing and believe that they should be able to do so without fear of recriminations. It is right and proper that we review the whistleblowing framework, and we will do that once we have sufficient time to build the necessary evidence of the impact of the most recent reforms, so we will consider the scope and timing of a review.’

The above was said this week in Parliament by Paul Scully MP, the Minister overseeing whistleblowing review of the UK whistleblowing framework.  You’d think whistleblowing would be very much top of the government’s agenda and they would be keen to not be seen as dragging their feet over the promised review of the UK whistleblowing framework…

Let’s unpack what the Minister says. It is unclear exactly what the Minister means by ‘whistleblowing framework’ but at Protect we’re clear that any review of whistleblowing has to include a critical look at the legal protection offered to whistleblowers.

Evidence of the impact of 2017 reforms

By ‘evidence of the impact of recent reforms’ – the Minister is referring to changes implemented to the UK’s whistleblowing law, the Public Interest Disclosure Act 1998 (PIDA) in 2017. In particular, the annual reporting duty on regulators, including many of the biggest in the UK such as the Care Quality Commission, Financial Conduct Authority, National Audit Office etc who were made to report annually on the number of whistleblowers and types of concerns raised with them each year.  The Government are putting a lot emphasis on this evidence when considering the review and comments from the Minister this week (June 8) matches an answer in Parliament given by the same Minister in April.

4 Compelling Arguments

Many including Protect were disappointed not to see an employment bill in the Queen’s speech, it is vital that the Government looks at groups of the UK workforce that are currently excluded from whistleblowing protection.

Protect argues there are four pieces of evidence that are as important, if not more important when considering the review.

1) Unprotected Workers

The workplace has changed since PIDA was made law in 1998, where the rise of insecure work through the gig economy has meant PIDA has not kept pace. There are large groups of people working in the UK who are not protected by whistleblowing laws.  These include self-employed workers, volunteers, non-executive directors and trustees, and job applicants. Too often instead of a thorough review of law, it has been left to whistleblowers to bring cases to challenge the current thinking.  Two examples are Chris Day and Claire Gilham.

2) Holding Employers to account

The legal protection for whistleblowers is designed to encourage whistleblowers to raise their concerns at the earliest time, yet a gaping hole is that it fails to say anything on what is expected of employers when these concerns are raised.  We have found too often that when whistleblowers raise concerns they are ignored.  Research into our own cases from the Advice Line last year, shows 41% of whistleblowers when raising Covid-19 related concerns to their employer were ignored.  These concerns covered a variety of issues from suspected furlough fraud to Covid-19 safety breaches in people’s workplaces. Too often whistleblowers are left isolated when really, they are an employer’s and the public’s best warning system when things go wrong.
We are calling for there to be a legal standard on employers to have effective whistleblowing processes in place, this includes a policy, training programme for managers and a feedback process to the whistleblower.    If employers are found to have breached these standards then fines and recommendations for improvement should be handed down by Employment Tribunal judges – a measure the British public  – 84%.[1] support.

3) Access to justice fatally undermining whistleblowing protection

A review of the whistleblowing framework needs to acknowledge PIDA may be fatally undermined by the struggles whistleblowers face in enforcing their employment rights through the tribunal system.  Even before Covid-19, there were reported delays combined with an incredibly short time period of 3 months for whistleblowers to bring any claim where they have been victimised or dismissed.  We have found in our own research with YouGov that awareness of whistleblowing legal rights is low, with 52% of British adults who either said there was no legal protection for whistleblower (which is not true), or were unaware.  We need the Government to consider how better to support whistleblowers enforcing their rights by extending the short time limits at tribunal and considering support via legal aid for whistleblowers.

4) Falling behind internationally

For decades the UK law protecting whistleblowers has been a leading example internationally, yet through neglect by successive Governments the law is slipping behind other countries.  This includes laws already in place in Ireland and France, while in Europe EU national countries are expected to update or put in place whistleblowing laws in line with the EU Directive on whistleblowing.  Included in the Irish law and the EU Directive are changes or new laws that expand worker protection to include many groups of workers excluded under UK law, and the creation of standards on an employer’s whistleblowing arrangements.  The UK is very close to losing its status as a leading example internationally of whistleblowing protection.

By Andrew Pepper-Parsons

[1] Taken from YouGov and Protect Survey of over 2000 UK adults.