Catastrophe, scandal and corruption – 25 years of whistleblowing protection

Whistleblowers in Great Britain have benefitted from a quarter of a century of enhanced protection against detrimental treatment for raising their concerns. The recent launch of a government review into the whistleblowing framework follows calls for reform, suggestions of expansion and proposals for reorganising responsibilities for whistleblowing.

Is the current regime fit for purpose and has it achieved the purpose envisaged?

Commonly known as “whistleblowing”, the pioneering statutory framework was established by the Public Interest Disclosure Act 1998 (PIDA). It was the response to a string of financial scandals and health & safety incidents, such as the Herald of Free Enterprise ferry capsizing in 1987, killing 193 passengers and crew just off the coast of Belgium.

It was established that this disaster, as well as many other accidents and scandals, could have been averted had the businesses in question been alerted to the concerns of staff. The legislation brought in protection for employees or workers who blow the whistle on wrong-doing if the disclosure is in the public interest; protection is afforded from detrimental treatment, dismissal or victimisation.

Whistleblowing protection is now recognised as essential to encourage reporting of failures, corruption and illegality. The last 25 years have seen a steady increase in employment tribunal claims citing detrimental treatment for having raised a whistleblowing concern but, arguably, the current regime inadvertently shifts the focus away from the alleged wrong-doing and onto the whistle-blower and whether they have suffered a sanction. There is limited follow-up as to whether the disclosure was correct, let alone whether any remedial action has been taken about the alleged wrongdoing itself.

Inevitably, the proliferation of claims include those with dubious merits and some claims appear to have been strenuously engineered to demonstrate that the claimant reasonably believes that they have disclosed an act which falls into one of the six categories of malpractice. This could include a criminal offence or damage to the environment.

In many cases, employees may attach the label of ‘whistleblowing’ to a complaint which, although it may be valid, would be more properly dealt with under their employer’s grievance process. The motivation for adding such a label may well spring from a desire to demonstrate the strength of feeling about the complaint, but a disgruntled employee may also seek to bolster an existing dispute with the use of this loaded term.

The term is loaded in the context of employment tribunal claims simply because the protection afforded means that employees without two years’ qualifying service may bring a claim for unfair dismissal or detriment based on a disclosure. An additional attraction for claimants and a real concern for respondents is the lifting of the cap on compensation for unfair dismissal in such cases.

How do you protect your business from a successful whistleblowing claim?

The easiest defensive move is to ensure that your whistleblowing policy is up-to-date, fit for purpose and, most importantly, well-publicised amongst staff so that they can come forward with confidence if they have concerns.

Make sure you have a solid pathway for concerns and management capacity for effective investigation of them – third-party whistleblowing hotlines can also be an effective investment. One of the benefits of a strong culture which encourages staff to speak up is the early warning of latent risk in the business, enabling you to manage it more effectively.

The government’s review is expected to conclude in Autumn 2023. One possible recommendation is that whistleblowing protections are expanded beyond employees and workers to anyone with a direct economic relationship to a business, such as shareholders, suppliers, customers or creditors. A timely prompt to encourage businesses to ensure that their current disclosure processes are as robust as possible ahead of any enlargement of the regime.