With instances of whistleblowing hitting the press on an ever-increasing basis, does UK law do enough to protect employees who blow the whistle on their employer's wrongdoing? According to a new report published by the international NGO, Blueprint for Free Speech, and the Thomson Reuters Foundation (the "Report"), the answer to this question is a resounding no. The Report identifies a number of deficiencies in the current statutory regime and argues that the UK falls short of international standards. It goes on to propose 10 urgent reforms and 10 further recommendations.
Whistleblowing occurs when a worker reports or exposes (in most instances to his/her employer, but potentially also to the appropriate regulator or even the press) certain wrongdoing or malpractice in the workplace. English law provides certain protection against victimisation and dismissal related to whistleblowing. Since June 2013, workers – to be protected – must have a reasonable belief that the disclosure is "in the public interest".
Deficiencies in the UK Framework
The Report suggests that a whistleblower protection framework should provide adequate channels of disclosure, protect against employer retaliation, and provide remedies for any such retaliation.
The Report makes a number of criticisms of the current statutory regime and concludes that there are areas where it does not meet international standards. These range from the extreme (the Report considers there is a failure to have measures in place specifically to protect whistleblowers and their families from physical harm resulting from disclosure), to the procedural (the Report considers enforcement through Employment Tribunals is inaccessible to non-lawyers; Employment Tribunals are insufficiently expert in the specific nuances of whistleblowing cases; and damages awarded do not reflect the public interest in the disclosures that have been made). However, and perhaps of most relevance to employers, the Report also argues that the UK regime does not protect a sufficiently broad range of "workers", and provides no mechanism to prevent retaliation before it occurs.
The Report recommends 10 reforms which it considers are urgently required:
- Rapid response system – the Report considers that under the current legislation, whistleblowers can only take action after retaliation has occurred, with interim relief being inadequate and difficult to obtain in practice (due in part to the high costs involved of bringing proceedings in the High Court). The Report advocates establishing a system to allow whistleblowers to obtain a preemptive "protection order" within 30 days and without the payment of fees.
- Designated government or independent agency – should be set up to protect employees from retaliation and should serve as an ombudsman to advise and support whistleblowers.
- Retaliation penalties – civil, and potentially criminal, penalties should be imposed on individuals who retaliate against whistleblowers. Employment Tribunals should be encouraged to award aggravated damages in the most serious cases.
- Specific Employment Tribunal standards and formulae for whistleblower cases – generic unfair dismissal principles are used to decide whistleblower cases, leading, the Report concludes, to inadequate levels of compensation. Whistleblowers should be guaranteed ample compensation for all past and future losses, reputation and career damage, and injury to feelings.
- Whistleblower disclosure channels and protection systems – should be established in government agencies and medium-to-large companies, which allow employees to report anonymously and with systems in place to protect against retaliation.
- Obligation to investigate – regulators responsible for investigating disclosures should be obliged to investigate valid reports and provide reasons where it is believed that an investigation is not warranted.
- Intelligence and military staff – currently not covered by the legislation, a system should be put in place to allow such staff to report misconduct through designated channels and without fear of retaliation.
- Burden of proof and 'reason shopping' – currently, to avoid a finding of unfair dismissal, employers have to show that the disclosure was not the principal reason for dismissal. This, the Report argues, encourages employers to engage in "reason shopping" to find alternate grounds on which to base a dismissal. Instead, the Report supports the full burden of proof being on the employer to demonstrate that the dismissal was in no way related to the disclosure.
- Gagging clauses – confidentiality clauses in settlement agreements that seek to ban public discussion of whistleblower disclosures should be monitored and restricted.
- Access to justice – Employment Tribunal fees should be significantly reduced and the hearing process simplified to avoid the need for lawyers.
As mentioned above, the report also recommends that the range of individuals protected by whistleblowing legislation is extended to include, for example, interns and volunteers, non-executive directors, job applicants, foster-carers, and people who assist whistleblowers.
The Report adds to a growing body of research critical of the UK's whistleblower protection framework, but its impact on policy remains to be seen. It also needs to be read in context of the author of the report, i.e., a charity which supports freedom of expression. Groups who support removal of red tape for employers, for example, may favour a different approach.
As Parliament will be preoccupied with Brexit for the foreseeable future, the likelihood of legislative changes being introduced as a result of the Report (or any other commentary on the topic) is low. Nonetheless, it serves as a reminder for employers to monitor their whistleblower procedures to ensure that the process for making disclosures is sufficiently clear, that employees are adequately trained on identifying and reporting wrongdoing, and that all managers involved in the process understand the steps to be taken following a disclosure being made.
In addition, and by way of best practice, employers may want to consider voluntarily implementing a number of the Report's recommendations and proposed reforms as appropriate. For example, employers may consider widening their whistleblowing policies to cover a broader range of "workers", including volunteers and interns; or (if not in place already) putting anonymous whistleblower channels and systems in place, with an obligation on a relevant individual or group to investigate any issues raised. Employers may also want to make it clear in disciplinary policies that retaliation against a whistleblower will be considered to be misconduct.
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