On 20 September 2021, the whistleblowing charity, Protect, published a report entitled 'Workplace Whistleblowing: Why We Need a Legal Duty on Employers' as part of its ongoing campaign calling on the UK Government to reform current whistleblowing laws contained in the Public Interest Disclosure Act 1998 (PIDA).
When it was first introduced in 1998, PIDA was seen as pioneering legislation, providing protection to employees who were dismissed or suffered a detriment as a result of them making a protected disclosure; however, some 23 years on, Protect argues that it has not kept pace with the modern workplace and needs reform.
Protect's new report calls for minimum standards to be imposed on employers including a legal duty to investigate whistleblowing concerns, along with a positive duty to protect whistleblowers from detrimental treatment.
Protect's campaign follows the introduction of the EU Whistleblowing Directive ("Directive"), which EU Member States are required to transpose into national law by 17 December 2021.
The Directive goes further than PIDA by introducing legal duties on certain employers to: set up internal channels and feedback procedures; prohibit all forms of retaliation against whistleblowers; identify competent authorities to receive whistleblowers complaints, provide feedback and progress reports; and implement effective and proportionate penalties for anyone who retaliates against whistleblowers, obstructs the reporting of a disclosure or otherwise breaches the duties outlined in the Directive.
We outlined key considerations from the Directive for UK organisations in one of our previous insights, which you can access here.
The UK is not required to implement the EU Whistleblowing Directive. Instead, it will have to take its own path in raising standards.
The report highlights a number of findings from recent YouGov research commissioned by Protect including that:
76% of UK workers want all employers to be legally required to investigate whistleblowing concerns;
80% of workers agreed that employers should be sanctioned or fined for breaking whistleblowing policies;
only 31% of respondents said they knew how to raise concerns with their employers, although awareness was higher within the heavily regulated finance (50%) and health sectors (43%); and
only 43% of UK workers know if their employer has a whistleblowing policy (again, this was higher in the finance and health sectors).
As part of their campaign, Protect have published a draft Whistleblowing Bill setting out their requirements. Proposals in the draft Bill include that all employers with 50 or more employees and/or a turnover of £10 million be required to:
implement a whistleblowing policy or procedure for staff to raise concerns internally;
designate a ‘senior person’ responsible for the effectiveness of reporting channels and following up on disclosures;
introduce timeframes for responding to disclosures and providing feedback to whistleblowers;
set up and operate reporting channels that ensure the confidentiality of whistleblowers; and
train staff on how to raise concerns.
Protect’s draft Bill would also introduce:
a positive legal duty on employers to prevent the victimisation of a worker who raises a whistleblowing concern;
a legal requirement for organisations to document and review their whistleblowing arrangements;
sanctions against organisations and senior managers where they have breached legal requirements on whistleblowing arrangements;
powers for Employment Tribunal Judges to make recommendations in cases where they believe an employer should be making improvements to their whistleblowing arrangements; and
a new independent statutory body to set legal standards, with powers to investigate and sanction employers or regulators who are found to have breached those standards (with the proposed title of the 'Whistleblowing Commissioner').
Under Protect's draft Bill, employers who fail to comply with these legal duties could be fined or sanctioned by their regulators, or by the Whistleblowing Commission.What next?
Protect is not the only body calling for the reform of UK whistleblowing laws. Baroness Kramer (Liberal Democrat peer) recently introduced a bill to establish an Office for the Whistleblower, which has received the support of the All-Party Parliamentary Group (APPG) on whistleblowing and had its second reading in the House of Lords in June 2021. That bill would, among other things, require the establishment of a new body to provide guidance and support to whistleblowers.
Baroness Kramer's bill is a private member's bill and very few private member's bill ever reach our statute books. Baroness Kramer's original bill fell before its second reading debate. However, it should be remembered that PIDA started life as a private member's bill and, therefore, Baroness Kramer's latest bill and the bill now proposed by Protect should not be dismissed too quickly.
Whilst there may not be any immediate changes to UK whistleblowing law, we expect similar calls for reform to continue and for the UK Government to respond to these calls in the near future.
For more information on the impact of possible legislative changes on your organisation, please do speak to one of the team.
This article was co-authored by Liah Roberts
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