New report by international NGO “Blueprint for Free Speech” says UK whistleblowing law is inadequate and proposes reform.
When set against 26 “internationally recognised standards” , the UK’s Public Interest Disclosure Act (“PIDA”), which inserted the relevant whistleblowing provisions into the Employment Rights Act (“ERA”), apparently comes up short, with 50% of those standards missing from the statute altogether. This has led Blueprint for Free Speech (“Blueprint”), in their recently published report, to suggest that drastic reform is required, even going so far as to say that Whistleblowing law should be removed from the ERA and/or from the jurisdiction of the Employment Tribunals (a “whexit” if you will?).
So what exactly is wrong with our whistleblowing legislation, which was once considered to be pioneering? Blueprint’s study on this question is whistleblowing’s answer to the Chilcot enquiry. But here are some of the most prominent issues.
Lack of sufficient and proactive protection
Our current whistleblowing laws provide no mechanism to prevent retaliation against a whistleblower before it happens. Relief is only forthcoming (in the loosest sense of the word) once the damage has happened; be that emotional, financial and/or career-related. And even when relief arrives, it doesn’t always go far enough.
An examination of Employment Tribunal (“ET”) cases by Blueprint, found that the average duration of a UK whistleblowing case is 20 months, and the average median compensation awarded is £17,422. The typical cost to your average whistleblower in legal fees ranges from £8,000 - 25,000. And if that wasn’t off-putting enough to a potential defender of the public interest, our current system provides next to nothing in the way of direct penalties for individuals who bully, victimise or harass a whistleblower, with compensation for injury to feelings generally capped at £33,000. And yet there is a very clear public policy issue against putting whistleblowers off whistleblowing.
The solution? Well for a start, provision of proper interim relief to curb retaliation before it begins. Second of all, full compensation. Not just in terms of financial loss and legal fees, but also specific criteria to assess “stigma compensation” for damage to professional reputations. (Though one consequence of making it easier to claim back legal fees, may unfortunately be an enhanced risk of an adverse costs order in the event that a whistleblower lost their case.)
Drastically reducing ET fees (which led to a 20% decrease in this type of claim according to Public Concern at Work) and simplifying the procedure to such an extent that specifically trained judges could easily guide litigants in person through it without the need for legal representation, would go some way towards making the prospect of an ET claim a lot less daunting. Blueprint suggests ensuring all relevant information, including legal concepts and standards, should be made available in plain language, free of charge online. Equally, sending these claims to a Court instead of the ET, could potentially provide improved and prospective remedies, but at a higher cost in terms of legal fees and time spent.
This led Blueprint to suggest a dedicated administrative system, whereby public interest disclosers could apply to a separate body, perhaps a body such as BEIS, or a specialised government agency, for a “protection order”. Appropriate protective measures would thereafter be put in place, banning any form of retaliation in the workplace, and restoring the worker immediately to his pre-whistleblowing position, in the event that he has been “removed” therefrom. Certainly this is a concept which would require a lot of thought, and a fair amount of training, to implement. But then again, would you send a soldier into battle with neither weapon nor armour on the basis that, at some point, and at personal cost to him, you will compensate him for his injuries?
Unlike most other forms of unfair dismissal, where whistleblowing is concerned, the cap on damages is removed and compensation can therefore be much higher. Where the detriment complained of is dismissal, the burden of proof shifts uncharacteristically to the employer to establish that the principal reason for the dismissal was something other than the public interest disclosure. Now clearly if the employer can persuade the tribunal that the dismissal was actually for a fair reason, then Bingo, full house. But if that is perhaps an ask too far, then the next best thing is to persuasively argue that the principal reason for the dismissal was a reason other than the disclosure. This could still be an unfair dismissal, but the safety net of the cap (of the lower of 12 months’ salary or £78,962) is tightly screwed back on.
With this incentive in mind, employers are often encouraged to head off on a “fishing expedition” to uncover any other alternative reason that they can get their hands on from the employee’s work history, character and/or conduct. Employees can find that their employment history is dragged through the mud in order to find this alternative motivation, which could leave them with significantly decreased compensation; both by reason of the cap and, often, because the Tribunal has decided, on the basis of the evidence it has heard, that the employee contributed to their own dismissal and should have their compensation reduced.
Blueprint argues that the full burden of proof should be on the employer, to show that the adverse consequences which ensued were not in any way related to the employee’s act of whistleblowing. If their disclosure was but one of a number of other causes, that should suffice. This would bring it more in line with the approach when it comes to discrimination cases, where the protected characteristic needs to be a cause of the less favourable treatment, but does not need to be the only or even the main cause. And given the potential difference between the actual loss and the capped damages, this would surely make sense.
Some other suggestions
The Beach Boys once sang a song called “Wouldn’t it be nice”. It was a song which daydreamed about fast-forwarding to the future, so that they could have now, what they hoped to have in the future. Well Blueprint think it would be nice if all bona fide reports had to be investigated, with any which led to enforcement actions being made public (anonymising the whistleblower’s identity where appropriate. And wouldn’t it be nice if all employers were required to make a range of disclosure channels available to workers? Many employees might say so.
And we shouldn’t stop there apparently. Blueprint think it would be nice if PIDA applied to everyone, including those working in the (very public) sectors of national security and the armed services. Furthermore, “Gag orders” in settlement agreements, which prevent whistleblowers from further discussing their disclosure of misconduct, should be banned. Consider the fact that employment contracts cannot prevent a worker from blowing the whistle in the first place, and it does seem odd that an employer willing to pay can then pretty swiftly silence their worker as soon as they have made their disclosure. Finally, Blueprint have even gone so far as to suggest we follow America’s lead and award Whistleblowers a portion of any funds recovered, fines levied etc., in order to encourage people to come forward. A controversial proposal perhaps, as you do not want to inadvertently encourage dishonest or mercenary disclosures, motivated purely by financial desire for the “bounty”. But compared with what we currently offer – detriments, stigma and potential career suicide – it could be preferable..
Conclusion? “Let's talk about it. Wouldn't it be nice?”
An abridged version of this article was first published in People Management on 1 August 2016 and is reproduced with their kind permission.