‘Whistleblowing’ refers to the act of reporting or exposing suspected wrongdoing within an organisation. The law governing the area can be found in the Employment Rights Act 1996, as amended by the Public Interest Disclosure Act 1998. This protects employees and workers from being dismissed or subjected to detriment because they have made a protected disclosure.
According to a new report, published by NGO ‘Blueprint for Free Speech’ and the Thomson Reuters Foundation, UK whistleblowing law is ‘inadequate and does not meet international standards’. The report argues that UK law needs to go further in order to adequately protect whistleblowers and that the law is in urgent need of substantial reform. In comparison against 26 international whistleblowing benchmarks, the report gave the UK a score 37%. In particular, the report made the following ten urgent recommendations:
- A designated government or independent agency to protect workers, investigate disclosures, raise public awareness and serve as an ombudsman.
- Penalties (civil and criminal) for individuals who retaliate against whistleblowers.
- Changes to unfair dismissal law and compensation. Many unfair dismissal principles are currently ill-suited to whistleblowing claims, leading to inadequate levels of compensation. Whistleblowers should be entitled to ample compensation for all past and future losses, career damage and injury to feelings.
- The government and large organisations should have whistleblower disclosure channels and frameworks, including anonymous hotlines.
- Explicit requirement for prescribed persons to investigate disclosures and to make the results public, while protecting the whistleblower’s identity.
- Intelligence and military staff. A system should be put in place to allow intelligence and military staff to report misconduct through designated channels and they should be given legal protection from retaliation.
- Ban the inclusion of gagging clauses in settlement agreements.
- Access to justice. Employment tribunal fees should be significantly reduced and the hearing process simplified to avoid the need for lawyers.
- Rapid response system. Whistleblowers could obtain a ‘protection order’ which would legally ban any form of retaliation in the workplace
- Burden of proof and ‘reason shopping’. Employers should have to prove that dismissal or detriment is ‘in no way related’ to a protected disclosure. Currently, employers merely have to show that the disclosure is not the principal reason for dismissal, which encourages employers to engage in “reason shopping” to find further grounds on which to base a dismissal.
The report also recommended a number of other reforms, including financial incentives for whistleblowers, establishing a fund to raise awareness, the training of specialist whistleblowing judges, and widening the range of individuals covered by the protections.
It’s worth remembering that the report has no statutory force, and it remains to be seen how (or if) the government will respond. Nevertheless, the NGO report serves as a reminder to employers to have comprehensive whistleblowing policies in place and to keep them under review. For further information on any of the above, please contact a member of Devonshires Employment Team.