Are UK regulators letting whistleblowers down?

Last month the Financial Conduct Authority (FCA), in its capacity as a named body prescribed by the UK Government to hear whistleblowing concerns (a "prescribed person"), faced backlash following a self-published report on their own approach to whistleblowing. Employers should be taking note as ultimately these concerns and issues lead back to a company's own whistleblowing programme.

The FCA's self-published report (Whistleblowing qualitative assessment survey 2022 | FCA) focused on their role as a prescribed person. They had undertaken a limited survey to understand how effective their whistleblowing responses were, and how they could improve in their role. The statistics and responses they received were not flattering, and even when looking at a proportionally very small sample the vast majority of respondents noted that they were "extremely or somewhat dissatisfied" with how the FCA had listened to their disclosure and how they had explored the issues.
 
The FCA is not the only body to have undertaken a review of their whistleblowing procedures in recent times. Only last year the Care Quality Commission (CQC) was found to have subjected a special advisor to detriments after he blew the whistle to them regarding serious patient safety concerns. Off the back of this, the CQC arranged their own internal review which was published in March 2023 (Independent review into CQC's response to protected disclosures) and found significant failings in their handlings and management of protected disclosures.
 
Under current legislation, if making an internal protected disclosure to your employer is ineffective or inappropriate, individuals have the opportunity to make disclosures to other bodies, such as the FCA and CQC, and still retain relevant employment protections. The prescribed bodies were intended to be an essential, and ideally effective, way for individuals with concerns to raise their disclosures within recognisable and specialist channels. Notably, the FCA itself ran a campaign in 2021 to encourage individuals working in financial services to report potential wrongdoing to them. However one of the challenges these bodies now face is volume: in 2021 the FCA received over 1,000 protected disclosures, while the CQC received nearly 16,000.
 
This also raises another issue – namely the propensity for individuals now to air their grievances or raise their concerns on social media. If employers, and the relevant bodies prescribed by the UK Government to hear concerns, do not respond or deal with such concerns properly individuals are likely to resort to other channels, including social media. In 2021, a teacher at a Northumberland school commented on Facebook posts regarding the conduct of a senior individual at his school and outed his school for, amongst other things, allegedly hiding poorly behaved pupils on a squash court during an Ofsted inspection. This had been preceded by formal disclosures he had made to the school, Ofsted, the Department for Education, his trade union and his local MP. He was subsequently dismissed for these posts but the Employment Tribunal found that, as he had attempted to raise matters internally before making public statements, his public comments were protected disclosures.
 
The takeaway from these cases and reports is it has never been more important for employers to have effective whistleblowing procedures in place. Without a strong and meaningful framework for employees to utilise, companies may inadvertently be driving their staff to disclose to external bodies. If those bodies are failing to meet their objectives, employers may then find staff utilising their last resort and going public.
 
The UK Government is currently reviewing the UK's whistleblowing framework and the FCA has noted that the Government review may bring with it improvements to the regime, and the expectations and burdens placed on the prescribed persons, but it remains to be seen what direction the Government will decide to go.