The law that sits behind the right to "Speak Up" has been around for over 25 years but has received significant publicity recently with various public scandals involving large corporates, the "Me Too" campaign and the use of confidentiality agreements. So, is the law good enough at protecting individuals if these issues are still giving cause for concern?
The Public Interest Disclosure Act 1998 (PIDA) provides protection for those who speak up regarding some forms of wrongdoing. A disclosure is protected if the worker reasonably believes the disclosure of said information is in the public interest. Examples of protected disclosures include where workers have expressed their concerns regarding their employer's compliance with health and safety requirements, or where there has been a criminal offence (such as sexual harassment or money laundering).
Current Law – how are whistleblowers protected?
Whistleblowers are granted protection from detrimental treatment following a protected disclosure. This means any dismissal on grounds of the whistleblowing will be deemed automatically unfair. Further, if the worker experiences any negative treatment such as being denied a promotion or pay rise as a result of their disclosure, this can result in a whistleblowing claim against the employer and also personal liability of individuals involved. If there is found to have been detrimental treatment, then a whistleblower may be awarded financial compensation following a claim to the employment tribunal.
Why might we need reform?
There are clearly some gaps within the current regime. For example, only certain categories of workers are protected so those who do not have a contractual relationship, such as job applicants, volunteers and non-executive directors, are not protected. The disclosure also has to be made to a specific individual (either an employer, legal adviser, or other "prescribed person" ). It's also debated as to whether the legislation offers enough protection to incentivise people to come forward.
Other jurisdictions are updating their whistleblowing protections which is also pushing conversations for reform. For example, the EU has introduced the Whistleblowing Directive (Directive (EU) 2019/1937) which does offer protection for those not currently protected under UK law, such as interns. It also places procedural requirements for investigating concerns, and further protection and support in the form of free legal advice to whistleblowers and provisions to protect them from any potential actions in relation to breach of confidentiality. Although this does not need to be implemented in the UK following Brexit, British companies which have operations within the EU will need to comply. Additionally, in the USA, legislation provides that whistleblowers can be awarded up to 30% of the amount recovered by the government if they receive over $1 million following enforcement action. This financial bounty, which is made up of monies received from the monetary sanctions, has incentivised individuals to come forward with information and over $1 billion has been paid since its introduction in 2012.
Whistleblowers are granted protection from detrimental treatment following a protected disclosure.
Government Action?
A review of the current whistleblowing framework occurred in 2023 although we are still awaiting the publication of its findings. The objectives of this review were to consider whether the current legislation facilitates disclosures and protects workers. The review will highlight which areas of the framework require further action, although it doesn't appear that the review will consider any of the suggestions which have been made for reform.
Separately, in January 2024 a private member bill was introduced to Parliament. The Whistleblowing Bill proposed the introduction of a new Office of the Whistleblower which would seek to protect whistleblowers. It would also create new offences relating to the treatment and handling of whistleblowing cases. The Bill has not yet had its second reading, so we have a long wait to see if the Bill succeeds in becoming law and if so, whether it does in its current form. A previous proposed Protection for Whistleblowing Bill was put forward to the House of Lords in 2022 but made no further progress, so it remains up in the air as to whether this new proposed bill will see its way into fruition.
The upcoming election also means there's likely to be further discussion regarding proposals for reform. Labour have currently included in their manifesto that they will strengthen whistleblowing protection, particularly in relation to reporting sexual harassment, although there are limited details as to how they propose to do so.
None of the above government actions seem to be considering whether there should be rewards in order to incentivize whistleblowers to come forward similar to what's on offer in the USA. However, one supporter of this reform is the current director of the Serious Fraud Office who believes the financial bounty would be helpful to their office in investigating claims. It has previously been rejected in the UK as it was believed that the moral obligation on individuals is enough incentive to blow the whistle and it "just isn't British" to pay for this information. For payments to be awarded by the Serious Fraud Office, legislation will be required and based on the current attitude of Parliament, this is unlikely to occur soon. Of course, payment from enforcement actions does not necessarily assist those who want to report serious offences relating to sexual and other types of harassment in the workplace, but who feel they will be forever stigmatised if they do.
How to deal with whistleblowing now?
Ultimately, recent high profile whistleblowing cases such as the Post Office scandal demonstrate there are those willing to speak out without the need of a financial incentive. It's also noted that whilst legislation may need some reform, one of the key factors in whether someone will whistle blow is the workplace culture and whether they believe their actions will have an impact and stop the wrongdoing. For employers, the first steps are to ensure they have policies in place to promote speaking out and demonstrate to their employees that any disclosures they make will be investigated.
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