Public Concern at Work (PCaW) set up the Whistleblowing Commission earlier this year to examine the effectiveness of the current rules concerning those who 'blow the whistle' on illegal actions by employers, and to make recommendations for change. Members of the group include two high-profile whistleblowers: former Olympus chief executive Michael Woodford and Gary Walker, formerly of United Lincolnshire Hospitals Trust,
Amongst other issues, the consultation considers whether all companies should be required to have a whistleblowing policy in place. Only listed companies are legally required to have such a policy. The group is also seeking views on whether employment tribunals are doing enough to protect whistleblowers, and whether UK whistleblowers should be incentivised to come forward as is the case in the US.
The term 'whistleblowing' refers to an employee telling a prescribed person or a person in authority at their employer about alleged dishonest or illegal activities occurring within an organisation or company. Whistleblowers may make their allegations to other parties within the company, known as 'internal' whistleblowing, or to external regulators, law enforcement or the media, the latter in more limited circumstances.
Legal protection for whistleblowers was introduced in the UK in 1999 as an amendment to the Employment Rights Act. The rules protect employees who make disclosures of certain types of information, including evidence of illegal activity or damage to the environment, from retribution by their employers such as dismissal or being passed over for promotion. In addition, where an employee is dismissed for making a protected disclosure, this dismissal is automatically unfair.
The Government has recently announced a number of changes to the whistleblowing rules, to be introduced by the Enterprise and Regulatory Reform Bill, which is currently before Parliament. If passed in its current form, the Bill will replace the "good faith" requirement with giving tribunals a discretionary power to reduce compensation awards where a disclosure has not been made in good faith. Public interest requirements will also be strengthened.
More recently, the Government announced that employers would be made responsible for "detrimental acts" of bullying and harassment towards whistleblowers by their co-workers. Similar provisions already exist under equality legislation, where employers can be found 'vicariously liable' for the discriminatory acts of their employees. Under the new rule, employers will have to be able to show that they took "all reasonable steps" to prevent the behaviour to escape liability.
The consultation seeks views on whether these amendments will achieve a "fair balance" between the interests of employers and employees. It also asks whether the current category of workers protected by the rules should be extended to include people such as interns, volunteers, non-executive directors, the armed forces and intelligence officers. It also pre-empts a forthcoming Government call for evidence on whether job applicants should be protected against discrimination from prospective employers because they made a protected disclosure in their previous job.