New report proposes radical whistleblowing reforms

The APPG is relatively new, having only been established in July 2018 by backbencher MPs. Their aim is to enhance whistleblower protection through research, legislation, policies and other means. Their first report focusses on experiences of whistleblowers and recommendations for reform. Future reports will focus on recommendations for regulators, government and representative bodies, and enquiries of MPs, Lords and the media.

What is the current law on whistleblowing?

Protection for whistleblowers was introduced by the Public Interest Disclosure Act 1998 (“PIDA”), amending the Employment Rights Act 1996, which prevents employees and workers from suffering a detriment if they have made a protected disclosure. The definition of “worker” for the purposes of whistleblowing protection is broad but requires some kind of working relationship, so does not encompass other stakeholders in a business or members of the public.

The whistleblower must have a reasonable belief that there has been a wrongdoing, which includes criminal offences, breaches of a legal obligation or a danger to health and safety. The whistleblower must also have a reasonable belief that making the disclosure is in the public interest, which is intended to avoid purely personal complaints being caught by whistleblower protection. Dismissals due to whistleblowing are automatically unfair.

What does their report say?

A survey carried out by the APPG found that the sector with the most whistleblowing complaints is the health and social care sector. This is unsurprising given the nature of the work undertaken in this sector and the potential risks that can arise from unethical behaviour. However, bullying and harassment was the most complained-of wrongdoing, with health and safety and crime closely behind.

The APPG’s report suggests that there are two recurring problems for whistleblowers: inaction and retaliation, including disciplinary action, isolation or pressure to sign non-disclosure agreements. Of those surveyed, many had faced both outcomes, sometimes within hours of raising the issues. Alarmingly, only 3% of people surveyed said they felt “very supported” after raising their concerns.

Some whistleblowers said they felt frustrated and discouraged from further reporting due to the delay in action and their exclusion from follow-up actions. Understandably, whistleblowers will want to know the outcome of their concerns, however there is no obligation under the current law to involve the whistleblower in any action taken.

The report also focusses on the effects on whistleblowers. The most immediate effect was on people’s careers, with some whistleblowers reporting that they felt forced out of their job, either because of the working environment, or because of a lack of trust in senior management, which is a common cause of a constructive unfair dismissal claim. There were many reports of people developing mental health issues as a result of retaliation.

Recommendations for change

APPG’s view is that the current protections are reactive as opposed to proactive and not enough is being done to minimise the risk of retaliation at the time the issue is raised. Amongst other things, they are critical of the lack of protection available for people who do not fall within the PIDA definition of ‘worker’.

They recommend that there should be mandatory channels and processes for reporting and dealing with wrongdoing across all sectors. They also recommend that protection be extended to whistleblowers who report harmful violations of integrity and ethics.

Most radically, the APPG proposes an Independent Office for the Whistleblower, acting as a centre of expertise to provide free advice, investigations and training.

Some of the respondents to the APPG survey suggested going further, calling for regulators to take a more hands-on approach by providing legal aid to whistleblowers and by bringing claims against employers on behalf of whistleblowers.

Impact of the APPG recommendations

The findings in this report should be approached with caution. It only includes survey results from 336 people, mostly from the public sector (although the survey is still open for responses). It’s unlikely the government will act on this report until the remaining two are published.

Regardless, potential change in whistleblowing laws is already on the horizon with EU member states having until 2021 to implement the new EU Whistleblower Directive. This requires employers of more than 50 employees to introduce whistleblowing procedures which include a three-level-system for reporting irregularities and providing feedback to the whistleblower. Whilst the EU directive would appear to remedy some of the issues in the APPG report, it is of course possible that Brexit will mean this never takes effect in the UK. Nevertheless, it is certainly possible that the combination of the directive and pressure from the APPG and others will push the government into implementing changes in the future.

Download the APPG report here.