Is whistleblowing law inadequate?

Wednesday 23 June 2021 marked World Whistleblower’s Day, an event designed to raise public awareness of whistleblowers’ rights and the importance of standing up against malpractice and wrongdoing in the workplace.

During the coronavirus pandemic, the importance of whistleblowing came to the fore, with a lack of adherence to health and safety regulations having potentially lethal consequences for employees.

Whistleblower charity Protect said it had been ‘inundated’ with coronavirus-related calls, with furlough fraud and health and safety concerns forming the majority of such calls between March and September 2020.

This year, campaigners have used the day to step up their fight for up-to-date legislation that offers whistleblowers fuller protection under the law.

What is whistleblowing?
Whistleblowing legislation was first enacted, following a slew of high-profile scandals during the 1980s and 1990s, in the form of the Public Interest Disclosure Act (PIDA) 1998.

The Act protects those reporting certain types of wrongdoing (i.e. whistleblowers), usually in their place of work. The wrongdoing must be in the public interest – i.e., have an impact on the general public and not just the whistleblower themselves – and can be related to past or present behaviour in addition to wrongdoing the whistleblower believes may occur in the future.

Whistleblowing offences include (but are not limited to):

  • Criminal acts, e.g. fraud
  • Corruption
  • Threats to public safety
  • Miscarriage of justice
  • Risk of damage to the environment

Is PIDA outdated?
According to research from the All-Party Parliamentary Group for Whistleblowing, just 12% of whistleblowers whose cases go to preliminary hearing at Employment Tribunals in England and Wales are successful, suggesting the Act is no longer offering the protection it was once celebrated for.

In 2021, Protect launched a campaign entitled ‘Let’s Fix UK Whistleblowing Law’, arguing that “too many people who speak up are ignored or victimized. Too many people are not protected by PIDA.” Meanwhile, Mary Robinson, Chair of the All Party Group for Whistleblowing, condemned PIDA in September 2020 as “toothless” and “overly complex”. So, what is wrong with it?

Well, according to Protect, three urgent reforms are needed, as follows:

  • Protection of more people – many people are excluded from protection under PIDA, including foster carers, athletes receiving coaching or training, and suppliers, partners and business associates, to name but a few.
  • Standards for employers – Protect argues that tougher enforcement is needed for employers who fail to meet standards for whistleblowing or to follow recognised procedures.
  • Better access to justice for whistleblowers – access to legal support and time limits on bringing an employment tribunal claim limits justice for those who report wrongdoing.

Change is in the air
It is clear that the winds of change are blowing, with three draft protected disclosure bills currently making their way through parliament. The first of these was drafted by Protect and launched in October 2019. In January 2020, this was followed by the Office of the Whistleblower Bill presented by the All Party Parliamentary Group for Whistleblowing. Finally, Dr Philippa Whitford MP’s Public Interest Disclosure (Protection) Bill was introduced in February 2020.

It is clear that the pressure is on to introduce new protections for whistleblowers in the post-COVID era; although it isn’t yet understood which (if any) of these bills will ultimately be drafted into law, those who PIDA has failed to protect in the past should feel hopeful that change is coming.

 

Sources:

https://whistleblowersblog.org/2020/03/articles/editorial/unsafe-and-unsound-how-citizens-suffer-under-the-uks-outdated-whistleblower-protection-system/
https://protect-advice.org.uk/protect-campaign-help-fix-uk-whistleblowing-law/
https://www.lexology.com/library/detail.aspx?g=83440393-b4eb-4da5-9e52-79d1d7090308&utm_source=Lexology+Daily+Newsfeed&utm_medium=HTML+email+-+Body+-+General+section&utm_campaign=Lexology+subscriber+daily+feed&utm_content=Lexology+Daily+Newsfeed+2021-06-24&utm_term=
https://bills.parliament.uk/bills/2589
https://www.linklaters.com/en/insights/blogs/employmentlinks/2020/november/listen-up_change-in-the-air-for-whistleblower-protection-in-the-uk
https://www.appgwhistleblowing.co.uk/post/summary-of-the-public-interest-disclosure-protection-bill-2019-21
https://protect-advice.org.uk/report-making-whistleblowing-work-into-et-outcomes-finds-women-whistleblowers-less-likely-to-be-represented-or-succeed/

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