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Whistleblowing Commission’s review ignores flaws in current legislation, says expert


Reforms suggested by the national whistleblowing charity would “very significantly strengthen” legal protections for employees, but could create huge burdens for employers without narrowing the sort of activities that are protected, an expert has said.

Christopher Mordue of Pinsent Masons, the law firm behind Out-Law.com, said that a “longstanding flaw” in the existing legislation meant that just about any complaint against an employer could be treated as a ‘protected disclosure’ for the purposes of the whistleblowing laws. The introduction of a strong presumption that such a disclosure was in the public interest in certain circumstances, as recommended by the Whistleblowing Commission following its review of the law, could “undo” the benefit of recent legislative changes, he said.

“Any discussion around whistleblowing protections has to start by acknowledging the valuable role that whistleblowers can play in exposing malpractice, corruption and threats to safety, and the need to ensure that whistleblowers have adequate protections against retaliation and victimisation,” he said. “However, too often ‘whistleblowing’ is a card that is played for tactical advantage and leverage rather than a genuine issue of organisational failure.”

“The Government has recently sought to address that problem by introducing a requirement that the worker reasonably believes that the disclosure is in the public interest - without this belief, the disclosure is not protected. The Commission’s report suggests that there should be a strong presumption that a disclosure is indeed in the public interest if it is about one of the statutory subject matters set out in the Public Interest Disclosure Act. Since that list includes an allegation of a failure to comply with a legal obligation - including any employment law right - this approach threatens to undo the potential benefit and purpose of the recent legislative changes,” he said.

He added that clear guidance on how this stricter test would work could address the issue. However, he said that “a legislative solution would be preferable to employers as a means of focusing protection where it is needed most and rebalancing the scope of this legislation”.

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. They may also make their allegations to external regulators, law enforcement or the media, the last of these 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.

Public Concern at Work (PCaW), the national whistleblowing charity, set up the Whistleblowing Commission earlier this year to examine the effectiveness of the current rules and to make recommendations for change. Members of the group include high-profile whistleblowers Michael Woodford, former chief executive of Olympus, and Gary Walker of United Lincolnshire Hospitals Trust.

In its final report, the Commission has made 25 recommendations for improving whistleblowing laws (32-page / 5.4MB PDF), centred around the adoption of a formal ‘code of practice’ that could be taken into account in whistleblowing cases before courts and tribunals. Other recommendations are to give regulators the power to review the licence or registration of organisations that fail to have effective whistleblowing arrangements in place; specialist training for tribunal members who will be handling whistleblowing claims; stronger anti-gagging provisions and specific laws against the ‘blacklisting’ of whistleblowers; and extending legal protections to include working students, volunteers and interns, and non-executive directors.

Employment law expert Christopher Mordue said that although some of these recommendations were welcome in principle, they would “increase the risk of opportunistic litigation” without a redefinition of the types of employer behaviour the whistleblowing legislation was designed to target.

“The recommendations would see recent case law overturned so that the mere making of an allegation of wrongdoing, without the disclosure of information, would once again be sufficient to establish a protected disclosure,” he said. “Another proposal would make it mandatory for tribunals to notify whistleblowing claims to the appropriate regulator.”

“Even more dramatically, the Commission recommends extending the scope of interim relief applications to cover detriment cases as well as dismissals. While their report does not spell out the form such interim relief would take, this could only take the form of an order requiring an employer to lift a suspension or halt disciplinary or performance management proceedings or prevent bullying or reprisals. That essentially proposes an injunction-style remedy via the tribunal system, which would be a truly radical development and offer a huge incentive to make spurious whistleblowing claims,” he said.

“In short, there are legitimate questions about whether current law and practice create the right environment to encourage public interest disclosures. However, any strengthening of legal protections must sit alongside a re-calibration of the purpose and scope of the legislation, to prevent any disgruntled worker seeking to claim the status of whistleblower simply to raise the stakes in a dispute with their employer,” he said.

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