Whistleblowing is an important channel for exposing and, ultimately, tackling everything from corruption, fraud and other economic crimes to bullying in the workplace. The Department for Business and Trade is conducting a review of how UK “whistle blower” protections are working.
Although it never appears in the legislation, the term “whistleblowing” is used to mean when a worker makes a disclosure of information which they reasonably believe shows wrongdoing or someone covering up wrongdoing and that the disclosure is in the public interest. The disclosure must relate to one of six types of “relevant failures”, which include criminal offences, the endangerment of health and safety, causing damage to the environment, a miscarriage of justice or a breach of any legal obligation.
The current framework
The Public Interest Disclosure Act 1998 (PIDA) inserted new worker protections for whistleblowing into the Employment Rights Act 1996. These are:
- the right for employees to bring a claim of automatically unfair dismissal if they believe that the reason, or principal reason, for their dismissal was the making of a protected disclosure. This is a “day 1” right in that two years’ service is not required; and
- that the right for workers (including but not limited to employees) to bring a claim if they are subjected to any detriment on the ground that they have made a protected disclosure. These claims can be in the form of a detriment claim against an employer or co-worker, or a vicarious liability claim against an employer for detriment by a co-worker.
For these protections to apply, there must be a qualifying disclosure, that is one which relates to one of the six types of relevant failures, a reasonable belief by the employee that the information tends to show the failure, and a reasonable belief that the disclosure is in the public interest.
The disclosure must also be a protected disclosure, which depends on the identity of the person to whom the disclosure is made. PIDA encourages internal disclosures to employers, although disclosures to certain external prescribed persons are also likely to be protected. These external disclosures are subject to more stringent conditions, with disclosures to police or the media being less likely to be protected.
The Prescribed Persons (Reports on Disclosures of Information) Regulations 2017 introduced a new requirement on prescribed persons, which includes the Bank of England and the Prudential Regulation Authority, to report on whistleblowing disclosures received.
Details of the review
The review, led by the Department for Business and Trade, is to assess the effectiveness of the current framework in meeting its original objectives.
The original objectives were:
- to provide a route for workers to make whistleblowing disclosures;
- to protect whistleblowers from detriment and dismissal, and provide a route of redress where this happens; and
- to support wider cultural change, recognition of the benefits of whistleblowing and encourage action by employers and others.
The review is centred around five core 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?
The review will look at the definition of “worker” for whistleblowing purposes – perhaps a broadening will be suggested. It also aims to investigate the roles and perspectives of workers, employers, regulators and tribunals, with the research and evidence gathering stage expected to conclude by autumn 2023. However the review does not cover reporting channels and protections where there is no workplace relationship, such as business transactions, journalists, witnesses or third parties etc.
Whistleblowing is an important channel for workers to report unsafe working conditions and wrongdoing. The importance of this was shown, for example, through the increased number of whistleblowing disclosures to the Care Quality Commission and Health and Safety Executive during the Covid-19 Pandemic. However, that increase also raised questions about the effectiveness of encouraging disclosures to employers. The data which elicited this review – published by whistleblowing advice service Protect – showed that one in four Covid-19 whistleblowers who contacted its advice line were dismissed. This certainly suggests that development and improvement of the current framework on whistleblowing is necessary.