A way out of the Brexit morass?
09 May 2019 – 14:15 | No Comment

Brexit-bound Britain will participate in this month’s European Parliament (EP) election, unless UK prime minister, Theresa May, and opposition leader, Jeremy Corbyn, manage to push the thrice-rejected EU withdrawal agreement through the House of Commons …

Read the full story »
Health

Energy & Environment

Circular Economy

Climate Change

Security

Home » Democracy & Governance, Focus, Home Affairs, Policy, Westminster

SOME OBSERVATIONS ABOUT UK WHISTLEBLOWING LEGISLATION

Submitted by on 05 Mar 2014 – 10:21

By Professor David Lewis, Middlesex University

Health and safety disasters (for example, the sinking of the Herald of Free Enterprise and the Piper Alpha explosion), financial scandals (for example, at Maxwell pensions, Barlow Clowes, Barings Bank and BCCI) and the work of the Committee on Standards in Public Life, all emphasised the need to provide greater protection for whistleblowers in the UK. As a result, the Public Interest Disclosure Act 1998 (PIDA) inserted Part IVA into the Employment Rights Act 1996 (ERA 1996).This measure has the sole purpose of protecting “individuals who make certain disclosures of information in the public interest”. After almost sixteen years on the statute book, one question that arises is whether our whistleblowing legislation needs to be amended in order to reflect more positive and broader objectives. For example, should Parliament aim to actively promote the reporting of concerns and should it try to ensure that allegations of wrongdoing are investigated?

Part IVA ERA 1996 acknowledges that those who report suspected wrongdoing may suffer retaliation. Yet research shows that fear of victimisation is only one of the reasons why people choose not to disclose information. Another important factor is the belief that no remedial action will be taken if malpractice is established. Thus if we are serious about promoting whistleblowing in the public interest we need to focus more on the message than the messenger. For example, employers should be obliged to: introduce and maintain a whistleblowing procedure that complies with the BSI Code of Practice 2008; ensure that concerns are investigated and provide feedback to disclosers. To those who might view such steps as unnecessary burdens on employers, it should be pointed out that such measures exist in other countries and are no more than enlightened self-interest. If employers have a satisfactory internal procedure they may learn about problems early and can deal with them before they escalate. On the other hand, if an informant thinks that their concern has not been investigated properly or at all he or she may be inclined to report it externally.

In 2013 the Enterprise and Regulatory Reform Act replaced the good faith requirement for protected disclosures under Part IVA ERA 1996 with a public interest test and made employers vicariously liable for acts of retaliation inflicted by their staff. The removal of the words “good faith” is to be welcomed as it will shift attention away from the motives of the discloser (although these may still affect any compensation awarded). However, the need to demonstrate that a qualifying disclosure is in the public interest may deter people from speaking up. Indeed, whistleblowers will only learn at an employment tribunal if the panel agree that a public rather than a private interest has been served. In such circumstances it will be difficult for anyone to give potential whistleblowers reliable advice and many will choose to remain silent. To give one example, a report about alleged abuse in a care home is likely be in the public interest but is a concern about bullying at the workplace? If only one person is adversely treated arguably they have a personal grievance but, if bullying is used generally as a management technique, is there a not a public interest in dealing with it?

In addition to the problem of uncertainty about protection, there is the practical problem of exercising rights. Workers who are dismissed or suffer a detriment on the grounds that they have made a protected disclosure can complain to an employment tribunal irrespective of their length of service. However, tribunal fees were introduced in 2013 and these are likely to deter people without resources. Another aspect of the process that should be highlighted is that tribunals can only award compensation. They are not empowered to investigate a worker’s allegations or even order an employer to cease engaging in proven malpractice. Thus employers can continue to behave improperly so long as they do not victimise whistleblowers or are willing to compensate them! Unsurprisingly, it has been suggested that mediation might be more attractive as a form of dispute resolution as this process might allow allegations to be investigated and recommendations made.

One radical suggestion is that a Public Interest Disclosure Agency should be established. This could ensure that allegations were investigated by appropriate persons, could advise potential and actual whistleblowers and provide assistance to those who believe they have been victimised. Although it seems unlikely that the Government would provide resources for such a body in the current climate of austerity, such a move would send out a very positive message about the importance of whistleblowing in a democratic society. It is generally accepted that the promotion of whistleblowing requires a culture of openness and not just lip service to a paper policy or procedure. People need to feel confident that they are doing the right thing if they raise a concern and that it will be taken seriously. This cannot be achieved by simply imposing a duty to report wrongdoing. However, if employers lead from the top and encourage reporting by having procedures with appropriate safeguards (and even rewards) it may be legitimate to expect people to disclose wrongdoing.

 

Professor David Lewis is Professor of Employment Law, MiddlesexUniversity and Convenor of the International Whistleblowing Research Network

d.b.lewis@mdx.ac.uk