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- ‘Protect’ (the UK’s whistleblowing charity) believes that the law is outdated and inadequate
- Back in March 2023 the government launched a review of the Whistleblowing framework after criticism that it does not go far enough to protect people who speak out.
- 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.
An individual who reports specific types of misconduct is considered a whistleblower. The misconduct uncovered must typically be something they have observed whilst employed, although there can be exceptions. The wrongdoing disclosed must be of public interest, which means it could impact others, such as the general public.
The law safeguards whistleblowers and prohibits mistreatment or termination of their employment due to their act of whistleblowing. Concerns can be raised around issues that occurred in the past, are ongoing, or are anticipated in the near future at any point.
Although protected by law, 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]
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 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.
Calls for change
Following calls that PIDA is no longer effective, a government evaluation of current UK whistleblowing laws is scheduled to be released in Autumn of 2023.
On March 27th, 2023, the UK government made public their intention to conduct a thorough evaluation. The objective of the review is to assess how efficient the current framework is in allowing workers to report any unlawful activities and safeguarding them from any potential repercussions for speaking out.
The full review can be accessed on the government website and will be based around five research questions:
- How has the whistleblowing framework facilitated disclosures?
- How has the whistleblowing framework protected workers?
- Is whistleblowing information available and accessible for workers, employers, prescribed persons and others?
- What have been the wider benefits and impacts of the whistleblowing framework, on employers, prescribed persons and others?
- What does best practice look like in responding to disclosures?
Whilst the full impact on organisations remains uncertain, the review aims to determine best practice for employers and the handling of whistleblowing reports. Employers should anticipate increased procedural guidelines.
What should a policy include?
- An explanation of what whistleblowing is, particularly in relation to the organisation.
- A clear explanation of the organisation’s procedures for handling whistleblowing.
- A commitment to treat all disclosures consistently and fairly.
- An idea about what feedback a whistleblower might receive.
- A commitment to emphasise that victimisation is not acceptable, and any instances will be taken seriously.
- An idea of the time frame for handling any disclosures raised.
Information about blowing the whistle to the relevant prescribed person(s) & signposted guidance from the Government, ACAS, Public Concern at Work or Trade Unions.
What does best practice look like?
Best practice in terms of whistleblowing is centred around creating an open, transparent and safe working environment for employees to speak out. Employers should consider the following when implementing or reviewing whistleblowing policy and procedures:
- Employees are your ears and eyes: Employees are a valuable asset when it comes to identifying potential issues within a business. They are often the first ones to witness any type of wrongdoing, they can provide critical insights that could prevent damage to reputation, performance and in some cases, even save lives.
- Invest in training: Employers should provide sufficient training and advice to ensure everyone has access to the knowledge and tools they need to raise any concerns. Employees that understand their rights and responsibilities will feel they can communicate honestly and openly through the correct channels.
- Be accountable: As an employer it is crucial you effectively follow through and investigate whistleblowing reports promptly. Policies should be in place to help you respond, be in control of the situation and collect as much information as possible. Resolving issues quickly is of benefit to the business as concerns are more likely to be kept private and you have more time to put right any wrongdoing.
- Culture and attitudes: 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.
Conclusion
The introduction of legislative reform is a positive step forward and will bring attention to the issue at government level. Nevertheless, there is still much work to be done within the UK’s workplaces to establish a culture where individuals feel comfortable reporting wrongdoing without fear of reprisal.
Creating a workplace culture where employees feel secure in expressing their opinions and reporting any issues, not only promotes ethical behaviour within the organisation but also leads to a more enjoyable work environment that fosters growth and success for both individuals and the company.
There is still much to do in respect of whistleblowing and society’s treatment of those who do speak out, 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 require advice regarding whistleblowing, please get in touch with the team at hello@tenetlaw.co.uk
Authors: Paula Crowther & Esther Phillips
[1] The Guardian
