News 19th Jun 2020

Whistleblowers deserve better - join Protect in campaigning for legal reform

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Laura Fatah

Policy Officer at Protect

Laura Fatah is Policy Officer for whistleblowing charity Protect and has been there since 2017. Laura supports Protect’s policy work, identifying opportunities to engage with MPs and Ministers on reforming the legal protection for whistleblowers.

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Has there ever been a time when the value of whistleblowers has been so clear to society, on such a global scale? As the international COVID crisis has shown, the brave actions of a few can prevent harm to the many. Recently, courageous individuals from the healthcare sector have resolutely voiced their concerns about the lack of personal protective equipment (PPE) and testing available, and those working in care have bravely spoken up to protect vulnerable individuals who are not receiving the support they need.

More than forty international organisation have signed a plea to “all public authorities and institutions to protect those who report or expose the harms, abuses and serious wrongdoing that arise during this period of crisis caused by the COVID-19 pandemic”.

Whistleblowers can come from all corners of society. They expose corruption, stop fraud and make the world a fairer place. By shining a light on malpractice, whistleblowers bring transparency to businesses, charities and governments to ensure problematic issues are not hidden in the dark. A European Commission 2017 study estimated the potential benefit of effective whistleblower protections could bring £2billion (€2.3bn) in recovered misused public funds to the UK annually, in the area of public procurement alone.

Unfortunately, workers who raise whistleblowing concerns often face negative treatment from their employer or from colleagues. Protect’s most recent stats show that from when lockdown began at the end of March until the end of April, 56% of whistleblowers reported some form of negative treatment: 26% were victimised or disciplined, 21% were dismissed and 2% were bullied by co-workers. In addition, 6% reported that they had resigned and a further 2% reported suspension. These findings paint a bleak picture of the challenges whistleblowers can face, and Protect believe more must be done.

 

#NewLaw4Whistlebowers

Protect, the UK’s leading authority on whistleblowing, are campaigning for legal reform, to ensure workers in the UK have access to the best legal rights possible. Our proposals would bring:

  • An enforceable obligation for employers with over fifty staff to establish safe and effective internal whistleblowing arrangements, and to respond positively when whistleblowing concerns are raised
  • Legal aid for all whistleblowers
  • Mandatory standards for regulators to meet when handling whistleblowers
  • A civil penalty regime to hold employers and regulators to account when standards are breached
  • Clear wording in non-disclosure agreements (NDAs), outlining the kinds of disclosure the individual can still make and to which authorities, to prevent workers being ‘gagged’

You can see the full details of our proposals and read more about the campaign here.

 

The case for legal reform

The Public Interest Disclosure Act, passed by the UK in 1998, was the first law in Europe to give rights to whistleblowers, allowing employees to bring a claim against their employer in the tribunal if they suffer negative treatment. However, twenty-two years on, case law and the changing employment landscape have revealed significant gaps in the law.

One the key issues with the current law is ‘worker status’. At the moment, only those who are recognized as workers have the right to bring a claim in the tribunal. Piecemeal changes have been through case law, meaning that judges and junior doctors are now recognized as within the protection of the law – but these changes have required lengthy legal fights, and leave many uncertain about their own position – would they be covered by the law in a time of need?

Protect say the law should apply to everyone who raises concerns in a workplace context, including governors, trainees, the self-employed, shareholders and even third parties such as family members; so all who need to can speak up in confidence. This reflects the recent EU Directive on whistleblowing, which member states have until December 2021 to transpose into domestic legislation.

The UK’s current law is also silent on what action should be taken in response to a whistleblowing concern being raised, and the Advisory, Conciliation and Arbitration Service (Acas) provides no minimum standards or guidance on what processes and procedures should be followed by employers. This leaves both employers and employees in the dark about what to expect. In fact, comparative research found the UK’s Public Interest Disclosure Act 1998 (PIDA) to contain “less than half of the best practice legal elements as set out in international standards”[1].

Sadly, the UK has slipped from being the world leader on whistleblowing rights, to getting left behind.

 

Parliamentary activity

Parliament seems to be listening. In July 2019, a parliamentary debate on whistleblowing drew strong contributions from across the political spectrum. All those who spoke praised the courageous acts of those who speak up to call out injustice and malpractice. Other key issues debated included the responsibility that regulators have to those who speak up. Under the present whistleblowing law, there is no way for a whistleblower to hold a regulator to account for the way they have been treated. Yet whistleblowers often turn to regulators, seeking a better response to their concerns. Protect’s new law would establish a responsibility for regulators to respond appropriately to whistleblowers, and to establish effective practices to protect their identity.

In 2020, two whistleblowing bills have been submitted to parliament. Dr Philippa Whitford’s Public Interest Disclosure (Protection) Bill 2019-21 and Baroness Kramer’s Office for the Whistleblower Bill 2019-21. Both seek to increase the accessibility of the law, to ensure concerns are dealt with appropriately and to provide whistleblowers with more effective mechanisms to challenge any mistreatment they suffer. Protect have briefed Dr Whitford on our proposals, and look forward to the second reading of her bill, which is due to take place on 26 June 2020.

If you’d like to share your thoughts and ideas on Protect’s draft bill please do get in touch: whistle@protect-advice.org.uk – we welcome all feedback on this blueprint for change. Join the call for legal reform by signing the petition.

 

Protect note that since the production of this article, the UK government has published a report on the risks of fraud and corruption in local government procurement, in line with the UK Anti-Corruption Strategy 2017 – 2022. This report highlights the huge impact whistleblowers have in identifying and deterring fraud: “The majority of cases of fraud and corruption relating to procurement come to light as a result of someone making a report or raising a concern”.

Indeed, the overarching recommendation from the report is that organisations should develop a compliant culture where whistleblowing is supported. However, despite recognising that more must be done to support and protect those who raise concerns, the report is silent on what reforms to the Public Interest Disclosure Act could be considered to advance this objective.

 

The TI-UK blog features thought and opinion from guest writers as well as TI staff. Any opinions expressed by external contributors do not necessarily reflect the views of Transparency International UK.

 

[1] Wolfe, Worth and Dreyfus, 2016, “Protecting Whistleblowers in the UK, A New Blueprint” Blueprint for Free Speech & Thomson Reuters Foundation; (pg 9) https://blueprintforfreespeech.net/wp-content/uploads/2016/05/Report-Protecting-Whistleblowers-In-The-UK.pdf