Whistleblowing: why are people still afraid to speak out?

Summary

• The current UK law relating to whistleblowing is contained in the Public Interest Disclosure Act 1998
• ‘Protect’ (the UK’s whistleblowing charity) believes that the law is outdated and inadequate
• It is not currently mandatory for UK employers to establish internal reporting procedures for whistleblowing
• Workplace culture and leadership has a huge part to play in creating an environment where employees feel able to speak out without fear of repercussions
• Despite global movements encouraging victims of harmful behaviour to speak out, there is still a stigma attached to whistleblowing that will take more than legislative changes to address

Whistleblowing: what is it?

Whistleblowing is not about personal gain. At its heart, whistleblowing is concerned about  exposing criminal or unethical behaviour by reporting it. This is not a legal obligation, but many would say it is a moral obligation upon us all.

Indeed, many of the UK’s high-profile whistleblowers speak of significant personal sacrifice, particularly with respect to their careers and mental health. However, when asked whether they would do it again, the majority confirmed that they would citing the need to follow your conscience and hold people to account.[1]

The recent case of the open letter signed by 61 ex-employees of BrewDog exposing corner cutting on health and safety, espousing values it did not live by, and creating a “toxic” culture that left staff suffering from mental illness is a good example of whistleblowing. However, notably those signing the letter were all ex-employees, with a further 45 ex-employees who supported the letter but refused to sign their names for fear of repercussions. It is true that the majority of UK whistleblowers have suffered detrimental treatment within their careers as a result of disclosures made. But why is this the case when there is legislation in place that ought to protect them?

Current law

The Public Interest Disclosure Act 1998 (“PIDA”) introduced the concept of “protected disclosures”. A protected disclosure is defined as being the disclosure of information which the whistleblower reasonably believes shows a criminal offence, a failure to comply with legal obligations, a miscarriage of justice, danger to the health and safety of employees, damage to the environment, or the hiding of information which would reveal any of these actions.

Under PIDA, disclosure of such information to relevant bodies such as an employer or “prescribed person” (for example, the Health and Safety Executive, Environment Agency or Data Protection Registrar) will be protected insofar as the whistleblower shall suffer no detriment in their employment as a result of the disclosure. For example, disciplinary procedures, dismissal, failure to receive a pay rise or promotion, or failure to receive access to facilities that would have otherwise been provided.

In the event, a whistleblower does suffer such detriment, they are entitled to bring a complaint before an employment tribunal. If an employee has been dismissed for making a protected disclosure, such dismissal is automatically considered unfair.

As a result of PIDA, many employers developed internal processes for reporting issues. However, the legislation has been criticised for not making internal whistleblowing policies mandatory. The EU Whistleblower Protection Directive (which will apply to organisations with 250 or more employees from December 2021) stipulates that organisations with 50 or more employees will be required to establish internal reporting channels. Of course, since the UK’s exit from the European Union, the UK is under no legal obligation to implement the Directive, however the Directive will be relevant for those companies with operations in Europe.

Other criticisms of PIDA include the fact that volunteers and self-employed people are not covered by the legislation, it does not protect whistleblowers from discrimination in recruitment (i.e. “blacklisting” of whistleblowers within a particular industry or marketplace) and there is no protection for whistleblowers against claims for libel in the event that a disclosure turns out to be incorrect. Furthermore, the legislation does nothing to address the psychological issues suffered by many whistleblowers.

Legislative change

It is unclear whether the UK intends to amend legislation to keep pace with the EU. Whistleblowing charities are certainly calling for a comprehensive review of PIDA which has not been updated since 2017, when there was a new legislative requirement for most prescribed persons to produce an annual report on whistleblowing disclosures made to them by workers. The government has stated that it is committed to reviewing the UK’s whistleblowing framework but has not specified a timeframe for such review.

However, there are current proposals in the form of the Office of the Whistleblower Bill (a Private Members’ Bill starting in the House of Lords), that would see the establishment of a national office, reporting to the Home Office, which would act on behalf of all potential and actual whistleblowers. A recent amendment to the Bill would give the Office powers to consult on amending or replacing PIDA.

The intention is that the Office would offer support in the form of legal advice and financial means to whistleblowers, monitor the actions of regulatory bodies and monitor investigations into both the original allegations and allegations made against those who might have acted unlawfully towards whistleblowers. The Office will also have reporting obligations and the remit to keep and analyse statistics creating transparency with regard to the treatment of whistleblowers.

The Bill is supported by ‘Protect’ (the UK’s whistleblowing charity) which states: “UK whistleblowing law is now 23 years-old and is failing to keep pace with the modern workplace. That is why Protect is campaigning to reform the law in its campaign, Let’s Fix UK Whistleblowing Law. We welcome Baroness Kramer’s Office of the Whistleblower Bill and the new amendment to her bill that the Office of the Whistleblower should have powers to review PIDA.”[2]

Culture and attitudes

In a recent post on Linked-In, founder of Tenet, Arun Chauhan, spoke of the pressure on children not to tell on someone; not to be a “snitch” or a “grass”. The irony being that we are taught from an early age that speaking up and exposing wrongdoing is somehow the wrong thing to do; that if you speak up you are the one not to be trusted. What a backwards message to be instilling in our young people. Is it any wonder that whistleblowing is under used, meaning that fraud, corruption and unethical behaviour often remains hidden?

In June 2020, Tenet published a White Paper entitled “Leading to Loss – leaders, culture and fraud” which explored issues beyond governance, examining the key risk factors contributing to internal fraud arising from the tone and manner in which an organisation is led. Culture is often overlooked in favour of stringent policies and procedures. We risk repeating the same scenario with respect to whistleblowing, when by far the most powerful tool in encouraging people to speak out against wrongdoing is creating a culture and working environment that instils trust in its employees that it is safe to do so.

An example where quite the opposite culture has been allowed to develop is the case of BrewDog, with ex-employees citing “the single biggest shared experience of former staff is a residual feeling of fear… Fear to speak out about the atmosphere we were immersed in, and fear of repercussions even after we have left.”[3]

Arun explains: “More important than policies and procedures is the culture within a workplace. Culture is driven initially by senior leadership, but flourishes when an entire workforce have an environment where the culture genuinely lives and breathes. I have long advocated for strong moral leadership as a way of reducing the risk of internal fraud. If your people know you care for them and leaders aim to do the right thing, your people will be more communal to look out for their organisation. If you get that right, employees do become your eyes and ears. Leadership and culture can work to create an environment in which employees feel able to make disclosures when they witness some wrong; without fear of reprisal and trust in anonymity. Get your culture right, your people will do the ‘right thing’ rather than the right thing for them.”

Comment

There is still much to do in respect of whistleblowing and society’s treatment of those who do speak out. Certainly, legislative reform is welcome and will push the issue onto the government’s agenda. However, more needs to be done within the UK’s workplaces to create an environment in which it is safe to speak out against wrongdoing without fear of reprisal. At the end of the day, companies that are able to rise to challenges from within and learn and grow from them will see success and loyalty not only from its employees but also from consumers.

Should you suspect fraud or other wrongdoing and require legal advice, please do not hesitate to get in touch at hello@tenetlaw.co.uk

Authors: Esther Phillips + Arun Chauhan

[1] https://www.theguardian.com/world/2018/oct/09/i-had-a-moral-duty-whistleblowers-on-why-they-spoke-up

[2] https://protect-advice.org.uk/baroness-kramer-office-of-the-whistleblower-bill-update-includes-reforming-existing-uk-law/

[3] https://www.theguardian.com/business/2021/jun/10/brewdog-staff-craft-beer-firm-letter