Guidance rather than legislation
The results of the Government’s Call For Evidence on whistle-blowing have been published after a short delay and, as expected, point towards further legal reform in this area.
Despite calls for much tighter regulation, the Government Response reveals general satisfaction with current legal provisions (including the changes effected last summer). Accordingly, changes to the law itself will be minimal only, as part of a proposed “package of measures” aimed at proving more effective in practice.
Many will be relieved that so little further legal intervention is deemed necessary, particularly so soon after last year’s changes.
The Government believes what is needed now is a shift in culture, away from negative perceptions ( particularly of whistleblowers themselves) and towards better understanding of the law, as well as the benefits of compliance. Its focus is therefore on improved guidance and steering employers towards positive behaviours, rather than further prescriptive measures.
The Call for Evidence
Even before changes to the Public Interest Disclosure Act 1998 (PIDA), effected in June 2013, the Government will have been aware that the subject of whistle-blowing was attracting increasing public interest and media attention. In February 2013, a high-profile Commission was set up by the Charity, Public Concern at Work. The Commission Report, published in December 2013, identified a need for various additional reforms but fundamentally, laid down the gauntlet in terms of where current legal protections are perceived as falling short.
Just weeks after the changes in the law last summer, in July 2013, the Government published its own Call For Evidence. The premise of this research was that, whilst the Government believes the overall legal framework works well, the legislation had not been substantially reviewed since its introduction in 1998, making review timely. A major catalyst also in terms of timing, were reports regarding standards of care in the NHS, such as revealed last year in Mid Staffordshire.
The results of the Call For Evidence have finally been published. Being primarily a request to share experience, rather than make recommendations, the nature of a Call For Evidence is different from a Consultation paper or Commission report. Even so, one cannot help but contrast the fact that a mere 78 responses were received as against some 38,000 who chose to respond to the recent Consultation regarding zero hours contracts –suggesting more limited engagement with this particular topic.
Following the Call for Evidence and the extensive debate which preceded it, the Government has formed a clear view of the way forward and how to encourage more positive cultural behaviours in the context of whistle-blowing protections.
A series of non-legislative changes are to be pursued imminently, with the minor legal changes deemed necessary to be effected by April 2015, as follows:
- Guidance and a Model Whistleblowing Policy
The Government appears to have rejected the adoption of a Code of Practice, as advocated and indeed drafted by PCAW, but nonetheless agrees that improved guidance as regards law and practice is necessary. It has therefore committed to work with appropriate bodies to develop new guidance which will, inter alia;
- clarify that the legislation is a remedy not a protection;
- that it addresses the detriment an individual suffers not the matter about which a disclosure is made; and
- that a whistleblower has to take certain steps to enforce their rights under the legal framework.
In addition, the Government plans to create a model whistle-blowing policy. It will also explore ways to promote positive examples of effective whistle-blowing policy and procedure, highlighting tangible benefits for organisations.
- Regulators to report annually
Considerable debate has been focused on the role of regulators in the context of whistle-blowing. The “Prescribed Persons” identified in PIDA, including bodies and organisations such as Commissioners of HM Revenue & Customs, the Food Standards Agency and the Office of Fair Trading, have an over-seeing role in respect of whistle-blowing but have often been perceived as too remote from this issue. The Government believes they have an important role and should be encouraged to be more pro-active. As a result, the Government will make it a legal requirement for Prescribed Persons to report annually upon whistle-blowing. This will be introduced via the Small Business, Enterprise and Employment Bill, although further consultation is to take place regarding the form and content of any such annual report.
The Government had also mooted introducing automatic referral of whistleblowing claims by the Employment Tribunal to the relevant prescribed persons, to replace the current system which is voluntary and little-used. However, it has decided against such a step for the time-being and intends to review the operation of the current voluntary arrangement.
- Tweaks to list of Prescribed Persons
In addition to imposing limitations upon the categories of protected disclosure, the law also prescribes the bodies to which disclosure can be reported outside of the employer. These “Prescribed Persons” are listed in the legislation and must be recognised bodies.
The Government has recently updated the list, adding MPs, the Civil Aviation Authority and professional regulatory bodies for health and social care workers. No further additions are proposed.
Although recognising that the mechanism for updating the list is cumbersome legally (requiring a new statutory instrument each time) the Government considers this process should be retained to ensure the list remains monitored and controlled. It nonetheless concedes that a key issue with the current approach is ease of access to an up to date list, few of the various updates in recent years appearing in one place. The Government has therefore undertaken to:
- publish a complete and up to date list of Prescribed Persons as soon as practicable;
- review the list annually;
- ensure online access is readily available and up to date.
- Minor adjustment to protected workers
Not every category of worker is currently able to claim whistle-blowing protection, many civil servants and health professionals being excluded. The PCAW Commission proposed a greatly extended list of protected workers.
The Government has confirmed that it believes the current categories of protected individuals to be largely appropriate. LLP members will now be recognised as protected workers following the recent case of Clyde and Co LLP v Bates Van Winkelhof. The Government also agrees there is a clear case for adding student nurses. However, it has resisted calls for further additions, such as job applicants and non-executive directors and also considers current legal protection against blacklisting to be adequate.
The Government had pledged to take the conclusions of the PCAW Commission into account in its response but whilst there is clearly consensus that greater guidance is needed for employers, the approach revealed by the Government steers away from many of PCAW’s recommendations and from increased legislation.
In particular, there are to be no changes to the recognised categories of wrong-doing, to include “the abuse and misuse of power” or “gross waste or mismanagement of funds”. The categories will therefore remain limited to just 6, such as the commission of a criminal offence, breach of legal obligation or damage to the environment which must now be in the public interest.
There are to be no financial incentives or rewards offered to encourage whistleblowers to come forward in stark contrast for example to the US regime. There will be just two extensions to the categories of protected workers, as opposed to the extensive additions many had called for, from job applicants to priests, non-executive directors and students in various roles. The approved additions are limited to student nurses and LLP members only.
Employers have been wary of increased regulation and mandatory requirements in this area, sensitive to any significant shift in the balancing of interests which might encourage misguided or spurious claims or increased bureaucracy. Even so, many will be surprised that what has proved a tortuous process, involving numerous expressions of opinion and some high profile comments about the treatment of whistle-blowers , has culminated in the conclusions revealed this week. Indeed, some may be wondering just how the Government plans to bring about the cultural changes it champions.
The answer to that question may well lie in changes already in force, namely the introduction of vicarious liability on the part of employers for detrimental treatment of whistleblowers by colleagues and the potential for personal liability of managers. Employers who take this latest announcement to mean they are off the hook and need do nothing, do so at considerable risk.