On Wednesday, the Government published its response to its most recent call for evidence on the UK whistleblowing framework (available here). Despite acknowledging that the consultation was prompted by an acknowledgement that “there were weaknesses in the framework, so that the legislation has not always achieved its intended outcome”, the Government is not planning any significant legislative amendments to the current framework, and has certainly fallen short of the expectations set by the Whistleblowing Commission (see our earlier blog here).
In its response the Government recognises that the whistleblowing framework is about addressing the workplace dispute that can sometimes follow a disclosure rather than the malpractice that is the subject of the disclosure. Accordingly, it wishes to focus on bringing about a change in culture in organisations, such that employers respond positively to whistleblowers and recognise the benefits that whistleblowing can bring, thereby avoiding a dispute arising in the first place. The Government plans on achieving this through non-legislative means, including by publishing guidance for whistleblowers and finding ways to “celebrate” employers who embrace whistleblowing in their organisations. Most significantly, the Government response contemplates the creation of a model whistleblowing policy, but adoption of the policy will not be mandatory. The Government hopes to publish the Guidance by the end of this year.
The Government’s other conclusions include:
- that the categories of disclosures which qualify for protection under the Public Interest Disclosure Act 1998 (the “PIDA“) should not be extended. Despite acknowledging that cases of “gross waste or mismanagement of funds” and “abuse and misuse of power” may not be captured by the current categories, the Government ultimately decided that extending the PIDA to offer protection for such disclosures would create legal uncertainty.
- that, at present, non-executive directors should not be given specific whistleblowing protection. This is despite acknowledging that non-executive directors may be in a position to witness malpractice. The Government also expressly noted that, in light of the Supreme Court’s findingthat LLP members are “workers” and therefore protected under the whistleblowing framework (see our related blog entry here), it does not consider necessary any further legislative changes in respect of the status of members of LLPs. At present, the Government’s only recommendation in this area is the extension of whistleblowing rights to student nurses (and other similar student groups). This is, however, an area it says it will keep under review.
- that the powers of the Information Commissioner’s Office to investigate misuse or personal data under the Data Protection Act 1998 are sufficient to protect against blacklisting and that no further statutory protection against blacklisting is necessary at this time.
- that prescribed persons (eg regulators) should have a duty under the PIDA to report annually on whistleblowing. The Government will consult on the detail of matters to be included in such reports. The Government also plans to review the list of prescribed persons on an annual basis .
- that overhaul of the current Employment Tribunal referral system is not required immediately. However, the Government has committed to carrying out an analysis to determine whether improvements need to be made to the current system.
- that it is unconvinced that “the introduction of financial incentives would change the cultural landscape in a positive way”. However, the Government has left the door open to the introduction of financial incentives for whistleblowing in specific organisations or specific types of cases, such as those involving fraud, bribery and corruption.
The Government hopes to implement all necessary legislation by April 2015.
Many commentators may view the Government’s response as a missed opportunity. Certainly, the Government has not seized the chance to iron out certain anomalies in the current regime or extend protection to other vulnerable groups. It will be interesting to see whether the scope of the amendments to the regime is broadened as the legislation makes its way through Parliament.