Whistleblowers play an important role in exposing wrongdoings relevant to the public interest.
As a result, the protection of whistleblowers has been incorporated into legislation all over the world, and the UK is no exception to the rule.
Having said that, debate is ongoing on whether or not current laws are sufficient to protect whistleblowers from the consequences of their actions. In this article, law firm Smith Partnership takes a closer look at the present and future of whistleblowing legislation in the UK.
What Qualifies as Whistleblowing?
The term ‘whistleblowing’ relates to situations in which an employee discloses illegal or unethical conduct within an organisation. Unlike wrongdoing of which the consequences are strictly personal, whistleblowing is set apart by its focus on the public interest.
If the consequences of an employer’s conduct have wider implications for the general public, then the individual exposing the wrongdoing will usually be referred to as a whistleblower. Depending on the specific circumstances surrounding the incident, the law protects whistleblowers from any potential consequences to their employment – such as unfair treatment, dismissal or demotion.
Examples of Whistleblowing
There are many scenarios in which whistleblowing may occur. Some of the most common examples of this include situations where a criminal offence has been committed or misconduct has had a negative impact on health, safety or the environment. Scenarios that involve a miscarriage of justice or cover up are also covered.
The above list is not exhaustive. Whistleblowing can occur under many different circumstances, whether it be in a private or public organisation. Whistleblowers should seek legal advice in cases where they are unsure on whether or not the law will protect them – for example byconsulting employment solicitors who deal with whistleblowing cases. The potential cost of getting it wrong can be substantial.
Current Legislation
Current UK legislation regarding the protection of whistleblowers was brought in under the Public Interest Disclosure Act 1998(PIDA) and expanded upon with the introduction of the Enterprise and Regulatory Reform Act 2013(ERRA).
Together, they provide the legal framework that governs the circumstances in which employees can lawfully blow the whistle, as well as setting out the requirements for legal protection following the event. Importantly, an employer cannot enforce a confidentiality or non-disclosure agreement which seeks to prevent qualifying whistleblowing. Such confidentiality provisions often arise when negotiating a settlement agreement to leave employment.
According to the legislation, an employee is protected if they disclose their concerns regarding wrongdoing to a ‘prescribed person’ (normally a legal adviser, employer or other relevant party such as a regulatory body) as part of a ‘protected disclosure’. Disclosures are normally legally protected where they are made in the reasonable belief of the employee to be true and to be covered by the law, regardless of the motive for making them, although disclosures made in bad faith are likely to affect the level of compensation.
What are the Concerns?
A recent report by the All-Party Parliamentary Group (APPG) has expressed concern regarding PIDA’s capability to adequately protect whistleblowers. The report, which brings together statistics gathered from a survey of more than 300 whistleblowers, lifts the veil on the serious consequences experienced by whistleblowers despite current measures aimed at protecting them.
Drawing upon the findings of recent academic research, the report describes organisations’ response to whistleblowing as overwhelmingly negative. A large number of the whistleblowers surveyed indicated they were confronted with victimisation and reprisal in various forms, including being confronted with disciplinary action, counter allegations, verbal harassment, suspension, relocation and dismissal.
Crucial recommendations made on the part of the APPG include (1) a call for the creation of an independent office aimed at protecting those who expose wrongdoing, (2) revising the legal definition of whistleblowing to include non-criminal violations of integrity and ethics, (3) extending whistleblowing protection to all members of the public instead of focusing solely on workers and (4) introducing a complete ban on non-disclosure agreements in whistleblowing cases.
The Implications for Modern Whistleblowing
The sheer extent of the alternatives proposed by the APPG clearly raises questions regarding the shortcomings of the current legal framework in protecting whistleblowers.
At the same time, it remains to be seen whether some of the recommendations – such as the proposed ban on non-disclosure agreements in whistleblowing cases – can or should realistically be put into practice. Whatever the case, the need to continually develop and assess current legislation is nonetheless crucial in supporting whistleblowing in the 21st century.
