INTRODUCTION

Public Concern at Work (“PCaW”) is a charity that seeks to support individuals with whistleblowing dilemmas at work, whilst also assisting organisations to develop whistleblowing policies and encouraging legislative change.

PCaW operates an advice line for workers who have witnessed malpractice, risk or wrongdoing. Last year, PCaW received 1,876 calls from individuals seeking advice regarding whistleblowing matters in the workplace and has recently published a report highlighting the key sectors and industries in which concerns are raised and the consequences that workers face once they have raised a concern.

The report suggests that, despite legislation to protect whistleblowers, this does not have the desired effect of protecting workers from dismissal as 53% of the callers were dismissed, victimised or bullied and 24% felt the need to resign from their employment. Over half of all concerns were ignored or denied by organisations and only 1% were thanked or rewarded for raising their concerns.

WHAT IS WHISTLEBLOWING?

Whistleblowing is the disclosure of wrongdoing, malpractice, fraud or risk within an organisation and usually relates to something that an individual has witnessed at work. As a result of making a “protected disclosure”, workers have the right not to be dismissed or suffer any detriment.

THE PUBLIC INTEREST DISCLOSURE ACT 1998

Historically, blowing the whistle on employers was seen in a negative light. Classically civil servants leaked information to the media and often suffered heavy penalties as a consequence. Following a number of major disasters and scandals in the late 1980s and early 1990s, such as the Clapham rail crash and the Zeebrugge ferry disaster (in which hundreds of lives were lost), public enquiries were established to ensure that lessons were learned from these tragedies.

Shockingly, the public enquiries highlighted that staff were aware of the existence of wrongdoing or malpractice which caused such incidents but were too scared to sound the alarm, or, if concerns had been raised, they had not been adequately dealt with.

In response, the Public Interest Disclosure Act 1998 (“PIDA”) was introduced to ensure that workers who witnessed unsafe working practices or had knowledge of defects within their organisation could raise their concerns without fear of losing their job or suffering any detriment in the workplace. The legislation offers protection to those individuals who make a qualifying “protected disclosure”.

WHAT IS A “PROTECTED DISCLOSURE”?

For a disclosure to be protected, the individual must have a reasonable belief that one of the following has occurred, is occurring or is likely to occur:

  • a criminal offence
  • breach of any legal obligation
  • miscarriage of justice
  • danger to the health and safety of any individual
  • damage to the environment, and/or
  • the deliberate concealment of information relating to any of the above.

It is also important to note that the disclosure must be “in the public interest”. This test was introduced to close a loophole that afforded employees unintended protection when making self-serving “disclosures” regarding their own discrete employment issues.

PIDA provides that any dismissal (including constructive unfair dismissal) of an employee will be automatically unfair if the reason, or principal reason, is that they have made a protected disclosure. The legislation also renders it unlawful for an employer to subject one of its workers to a detriment on the grounds that the individual has made a protected disclosure.

By way of example, a detriment could constitute threats, disciplinary action, bullying or loss of work or pay.

THE REPORT

PCaW reported a drop in the overall number of calls to its advice line in 2014, though the volume of calls still represented a 15% increase on their 2012 figures.

The majority of callers worked in the private sector, with the public sector experiencing an 11% drop in calls. Education remained the sector from which the advice line received the most calls (22% of the total number of calls).

The most common concern raised was financial malpractice, but the number of concerns raised in response to ethical concerns (meaning those complaints relating to nepotism, abuse of position and breach of confidentiality, for example) increased by 50%.

The data indicates that, in over half of all cases, employers ignored or denied the concern that had been raised. Conversely, only thirty three per cent of whistleblowers received a “positive reaction”, meaning their concern was resolved, admitted or investigated.

Some 16% of individuals were not aware of the outcome. Over half of the reported cases in 2014 received a negative outcome, but this figure illustrates a reduction when compared to the figures published in the PCaW’s 2012 report in which 63% of whistleblowers suffered a negative response.

The data also indicates that 77% of callers were subjected to a detriment after raising their concern, with 49% of this number being dismissed or electing to resign. Encouragingly, the 2014 statistics do illustrate a slight improvement on the previously published statistics for 2012; though progress certainly appears to be slow.

CONCLUSION

Whilst it is welcome news that fewer concerns raised are being ignored or denied by employers, there is clearly room for improvement if over half of all concerns continue to be ignored or denied. In the financial services sector it is worth noting that whistleblowing claims are on the rise. Data from the FCA shows that 1367 cases were opened last year (a 44% increase on 2013 and a 142% increase on 2012).

Whilst the sample pool of data in the report is small and it is likely that not all individuals who raise concerns under PIDA have notified PCaW, it is apparent that more needs to be done by employers to ensure that they have effective whistleblowing arrangements in place and whistleblowing policies are promoted and followed.

Arguably the legislation does not go far enough to protect whistleblowers as it fails to impose an obligation on employers to encourage whistleblowing, nor does it contain a mandatory requirement for employers to have a whistleblowing policy.

Instead, the data appears to indicate that some employers consider PIDA to be toothless and fail to take action to address workplace victimisation following a protected disclosure.

Employers should implement robust whistleblowing policies and staff training to ensure that concerns are taken seriously. Concerns should be fully investigated and all workers should be advised that whistleblowers should not be treated to their detriment.

Employers who get it wrong can become embroiled in costly Employment Tribunal claims and face negative publicity. In fact, the number of claims brought in the Employment Tribunal under PIDA has steadily increased over the last 15 years, with 2,212 claims being brought in 2013/2014.

It is worth noting that whistleblowing protection is a "day 1" right, covers workers as well as employees and compensation is technically uncapped. All the more reason for employers to tread carefully as these claims are particularly difficult to defend in view of the high subjectivity in the legal test for whistleblowing.

This article was first published by Thomson Reuters.