From 1st April 2017, new regulations (published today) require prescribed persons to report annually the numbers of qualifying disclosures they have received and what (if any) action they took in response.
The vast majority of whistleblowing allegations are raised directly with employers and, furthermore, the legal protection afforded to whistleblowers by the Public Interest Disclosure Act 1996 (PIDA) is biased in favour of such an approach. It is important to note that such qualifying disclosures to employers are unaffected by new regulations published today.
However, workers who are fearful of raising potential employer-wrong-doing with the employer itself may report their concerns externally in certain circumstances and still retain legal protection against retaliatory conduct. In this context, PIDA identifies various regulators as “prescribed persons” for this purpose, including bodies and organisations such as Commissioners of HM Revenue & Customs, the Food Standards Agency and the Office of Fair Trading. It is these disclosures that the new regulations will effect.
Key changes include:
- a new annual reporting obligation for prescribed persons;
- first reporting period = 1st April 2017 to 31 March 2018;
- reports to be;
- in writing;
- accessible to the public (preferably online); and
- produced within 6 months of the end of the relevant reporting period (ie on or before 30th September).
Why new regulation?
In recent years, amid extensive debate in the UK as to the scope of our whistleblowing laws, focus has also fallen upon the role of regulators and whether their important function in this context is being co-ordinated and exploited sufficiently.
A Government consultation in 2014 revealed that whistleblowers may be deterred by prescribed persons which fail to report back upon how their complaints were subsequently dealt with, whether they were taken seriously and what, if any, action followed. The principal purposes of the new regulations are therefore for prescribed persons to demonstrate that every disclosure is given reasonable consideration and is dealt with on a case by case basis but also to drive up transparency and consistency.
The Small Business, Enterprise and Employment Act 2015 paved the way to the introduction of the annual reporting duty, as now implemented from 1st April by the Prescribed Persons (Reports on Disclosures of Information) Regulations 2017.
To whom the new regulation applies
All prescribed persons as identified by PIDA (as amended): latest list here with few exceptions, such as Government ministers and auditors of a smaller authorities.
The new duty
Within six months of the end of a reporting period, which falls between April 1st and March 30th, each relevant prescribed person must report qualifying disclosures it has received and which it reasonably believes fall within its remit. Accordingly, an annual report falls due on or before 30th September each year.
The report must be published on the prescribed person’s website but may be published elsewhere provided it is sufficiently accessible and brought to public attention. It may be included in another annual report or published as a standalone document. There is no additional duty to report to Government directly.
Content of the report
Critical to the preparation of a report is the need for confidentiality. The regulations expressly require that the report must not contain any information which might identify the whistleblower, the employer or any other person to whom the disclosure relates.
Subject to those limitations, the report must address the following:
- the number of disclosures received in the previous 12 months, reasonably believed to be qualifying disclosures;
- in how many cases further action was deemed appropriate (whether or not taken);
- an explanation of the prescribed person’s functions, objectives and any statutory powers;
- a summary of the type of action taken in response to qualified disclosures (eg resolved with the employer, required further investigation, resulted in recommendations, etc);
- a summary of how the disclosed information has impacted on the ability of the prescribed person to perform its functions and meet objectives.
Prescribed persons will need to put in place appropriate mechanisms as soon as possible to collate the required information from 1st April 2017, ready for inclusion in a report by next autumn.
Many readers will already have noted an omission in these regulations: reference to any penalty or other repercussions for prescribed persons which fail to comply with the reporting duty. There is none, adding to concerns already expressed by many worker-representatives that these regulations affect only a very small percentage of whistleblowing claims and, what is more, lack real teeth.
But it is important to bear in mind that Government focus for many years now has been upon changing cultural attitudes to whistleblowing, rather than imposing stricter rules or penalties. In other policy areas too it is apparent that the Government is placing considerable reliance upon the capacity of public ”naming and shaming” to change employer behaviours. Encouraging regulators to be more co-ordinated and, for some, more pro-active in how they address allegations of whistleblowing, is a further illustration of the direction of travel in respect of whistleblowing policy and one which can only added to the all-important aspect of profile raising and improving workers’ faith in the system when it comes to unearthing genuine wrong-doing.