Protect Chief Executive Liz Gardiner welcomed almost 100 delegates to the third in our series of webinars to promote campaign Let’s Fix UK Whistleblowing Law which had the focus on duties and standards for employers.
The panel:
Rav Passi, whistleblower and Protect Trustee
Marina Glasgow, Deputy Chief Conciliator, ACAS
Sam Bereket, National Lead Intelligence & Leaning, National Guardian’s Office
Melanie Wilkes, Head of Research, Work Foundation
Ian Peters, Chief Executive, Institute of Business Ethics
Fraser Simpson, General Counsel, Wellcome Foundation
Protect Chief Executive Liz Gardiner: The aim of today is to encourage debate our on our proposals to modernise the UK’s antiquated legal framework for whistleblowing. Today’s particular focus is on duties and standards for employers.
The central difficulty with the UK’s whistleblowing law – the Public Interest Disclosure Act – is that it only offers an after-the-event remedy for whistleblowers who are treated badly or dismissed for raising public interest concerns.
By the time the whistleblower reaches tribunal, they have usually lost their job and paid a huge price.
Our legislation is also totally silent on what employers should do to support whistleblowing. Outside heavily regulated sectors, this means that many employers have no arrangements in place for whistleblowing at all.
This was starkly revealed during the pandemic when our helpline was inundated with callers – including from sectors such as hospitality and retail – who were concerned about health and safety at work, or worried about furlough leave fraud – and had no internal procedures to fall back on to raise serious issues.
The lack of an adequate framework is bad for workers who have no routes to raise concerns internally, but it is also bad for business. Workers on the front line can be the eyes and ears of an organisation. In case after case we find that they are closest to the issues when wrongdoing occurs and the first to detect harm.
Good whistleblowing arrangements show that employers are accountable. They help demonstrate strong codes of ethics and healthy corporate cultures. In updating our legislation and imposing standards on employers we need to bear in mind two things.
Firstly, in the UK, there are some sectors – notably finance and health – where whistleblowing enforceable rules have started making a real difference.
Our YouGov commissioned research – which you’ll find in our new report out today – found that workers in those sectors are more likely to know that their employer has a whistleblowing policy, and are more likely to know how to raise whistleblowing concerns compared with sectors that lack such rules.
The same research shows 76% of UK employees agree with Protect that all employers should be legally required to have whistleblowing processes in place.
The second thing to bear in mind is what’s happening in Europe where legislation is being modernised. The EU Whistleblowing Directive sets out some clear minimum standards for all employers of 50 or more staff, and should be implemented by December this year.
And the Directive requires that member states backs the approach with effective, proportionate and dissuasive penalties for persons that hinder reporting or who retaliate against whistleblowers. Our research shows 80% of the UK public agree that employers should be sanctioned or fined for breaching whistleblowing standards.
So while in Europe there is a new emphasis on getting whistleblowing right, the UK is in danger of falling behind in an area where we once led the way. On the plus side, the UK Government has committed to a review of whistleblowing law, but there is no timetable to do so, and there was no employment bill this session.
To address this, at Protect, we’ve drafted our own whistleblowing bill, drawing on best practice from Europe and around the world. It sets out how we’d like to see the law improved.
On area for discussion is who should enforce the new standards. It could be is our current regulators, or a new body such as a Whistleblowing Commission – or maybe the proposed Single Enforcement Body.
Progressive employers have nothing to fear but the whistleblowing rights and protections enjoyed in those companies will be extended. Our aim is simply this – to make good whistleblowing arrangements the norm, not the exception.
Rav Passi said ‘nobody wakes up wanting to be a whistleblower but want to work for a company that has ethics and values. He went on to explain the ‘tumbleweed’ that greeted him when he raised concerns whilst working for Nissan in Japan and the negative ramifications for his personal life: he took a big financial hit, was ignored by many of his friends and eventually lost his job. He emphasised that placing the onus on the whistleblower to prove their case is problematic. He outlined that this response (of punishing the whistleblower) is not how sensible, ethical employers should be treating employees who highlight wrongdoing. He said that it would be incredibly helpful to have the standards in place that Protect are campaigning for.
Melanie Wilkes, Work Foundation welcomed our legal reform campaign, ‘Let’s Fix UK Whistleblowing Law’. She spoke about what the UK’s divergence from EU standards would mean and the worrying insecurity in the labour market and temporary contracts which means it is harder for some workers to speak up and referenced stats from Standing at a crossroad: Brexit and the future of workers’ rights. She also mentioned two other projects; The Looking Glass: Mental health in the UK film, TV and cinema industry which includes points on whistleblowing within the industry, and Hybrid and remote working in the North of England: Impact and future prospects which underlines the importance of worker involvement in decisions around remote and hybrid work, and in developing an approach to disconnecting from work.
Ian Peters, IBE emphasised protecting whistleblowers should not begin and end with legislation; employers need to want to do so. Relying on legislation can lead to the workplace whistleblowing and the investigating of their concerns becoming a tick box exercise. He also noted that smaller businesses with part HR staff might not be able to comply with standards and duties imposed on all employers.
Marina Glasgow- ACAS highlighted some key statistics:
- £28.5 billion is the cost of conflict in employment context
- That is £1000 per employee
- Over 10 million people experience conflict at work
- 9000 people a year take time off work conflict
The question that she most regularly asks employers responding to whistleblowing concerns is, ‘If this message was being brought to you by someone you valued, trusted or liked, would you be treating it differently? Is it the whistleblowing or the whistleblower? ‘
Sam Bereket, National Guardian Office spoke of the NHS ‘guardian’ role and the support scheme it provides whistleblowers. He said 55,000 concerns have been raised with Freedom to Speak Up Guardians in the last four financial years and the feedback on the scheme has been very good and staff perceptions of speaking up are improving, as illustrated by the 100 Voices campaign.
Fraser Simpson- Wellcome Trust said, ‘Why wouldn’t you want to know where your risks are? Risks don’t just go away – they come back to bite you harder.’ He shared his experience of trying to develop open organisational cultures where it is normal to raise and investigate concerns. He considered that a legal duty would be really helpful in establishing a baseline; however, there is a risk of setting a baseline as the lowest common denominator – of setting the bar too low. He cautioned that a one size fits all approach would be difficult in the charity sector given the breadth of organisations within it. However, this should not stop us working towards core principles to guide employers.
Protect will continue its webinar campaign activity with future plans to host a webinar on access to justice for whistleblowers.