Research around whistleblowing claims under whistle blowing law, the the Public Interest Disclosure Act 1998 (PIDA) being brought before the employment tribunals point to a worrying figure of a 3% success rate.
Discrimination cases also fare as badly, with age discrimination cases being even lower at 1%. Overall, employment tribunal actions have a success rate of below 40%, with the highest being for redundancy claims at 39%. However, the majority of claims remain remarkably under 10%. [1]
But this 3% must be put into context.
PIDA suffers like all other employment tribunal claims due to the lack of legal support provided to individuals, which is part of a wider problem regarding access to justice in employment law, perpetuated by legal aid cuts.
With no current extension of legal aid to employment law cases (aside from discrimination cases), this may be one of the reasons to blame for this stark figure, which surely discourages claimants from pursuing whistleblowing claims to tribunal.
High legal costs mean whistleblowers relying on enforcing their rights under PIDA, are either left to take on this financial burden or left with no choice but to represent themselves in person. This leaves claimants vulnerable to employers who who have legal representation armed with a team of lawyers, due to the reputational risk involved in public interest cases.
The figures clearly speak for themselves.
From our research 40% of claimants were self-represented compared to the 44% who had legal representation. However, 68% of these claimants lost compared to the 53% who were represented.[2] This disparity means that whistleblowers are bearing the brunt of a regime which puts unrepresented claimants at a disadvantage making them less likely to succeed.
It is also becoming all too common for respondents to use costs warnings as an aggressive tool against whistleblowers to either withdraw or settle claims before going to a full hearing. Protect are in communication with the Solicitors Regulation Authority on this matter.
Settlements must also be considered when looking at this 3% statistic. In 2018/19, 31% of PIDA claims were settled through ACAS Early Conciliation.[3] This suggests that it also may be the case that many good claims are settled before seeing a full run at the tribunal, with poorer cases, especially with no legal support left to battle through without much success. What we don’t know is how many of settled cases have access to early legal advice- there is no available data from the Government or elsewhere on this point.
Protect’s Whistleblowing Bill which is arguing for new legislation – will put whistleblowing rights on the same footing as discrimination to qualify for legal aid. This offers a more robust framework for legal aid that goes further than the EU Directive – breaking down barriers to justice, and providing further protection and support for whistleblowers to come forward in raising vital public interest concerns.
[1] Statistics taken from released quarterly tribunal figures for April to July 2019.
[3] Statistics taken from released quarterly tribunal figures for April to July 2019.
By Protect Adviser Burcak Dikmen