Whistleblowing: the pressure mounts: Changes to the whistleblowing framework

At a glance:

• Improved guidance on protected disclosures
• Non-statutory code of conduct and tips on what a model policy should include has been published

Current legislation

The Public Interest Disclosure Act 1998 allows a “worker” to disclose certain information and obtain protection in relation to that disclosure. In order to be protected, the disclosure must be of information which, in the reasonable belief of the worker making the disclosure, is in the public interest and tends to show that:

• a criminal offence has been, is being committed or is likely to be committed
• a person has failed, is failing or is likely to fail to comply with any legal obligation to which he or she is subject
• a miscarriage of justice has occurred, is occurring or is likely to occur
• the health or safety of any individual has been, is being or is likely to be endangered
• the environment has been, is being or is likely to be damaged, or
• the information tending to show any matter falling within any one of the preceding paragraphs has been, is being or is likely to be deliberately concealed.

In order to obtain protection, the worker must follow a specific procedure which includes making the disclosure to a “prescribed” person in most cases. The fact that a worker can make a disclosure directly to a person other than their employer is often overlooked (and the breadth of the list of prescribed persons is not well understood). The current list of prescribed persons is available here. 

If a worker makes a qualifying disclosure, they have a right not to be subjected to a detriment by their employer. In addition, it is automatically unfair to dismiss an employee if the reason (or, if more than one, the principal reason) for the dismissal is that the employee made a protected disclosure. No qualifying period of employment is necessary in order to bring such a claim and there is no limit on the compensation that can be awarded. Further details are available here.

The Supreme Court has clarified in Clyde & Co LLP v Winkelhof that a member of a Limited Liability Partnership is a “worker” and so can claim the benefit of the protection given to whistleblowers. Further details are available here.

Guidance for Employers and Code of Practice

In March 2015, the Government published Whistleblowing: Guidance for Employers and Code of Practice.  Although a model policy had been anticipated, the Guidance makes it clear that there is no “one size fits all” and instead sets out a series of tips on what a policy should include.

The Guidance also makes it clear that a written policy is not enough.  It should be promoted and easily accessible. The Code of Practice, which sets out “best practice” also goes on to suggest that all workers should be trained on how disclosures should be raised and all managers on how to deal with disclosures.

Proposed changes to the framework

In 2014, the Conservative and Liberal Democrat coalition Government consulted on the legislation underlying the whistleblowing framework and subsequently issued a response setting out various proposed changes including:

1. Clarifying the position on cost awards (whether a successful claimant should be reimbursed their tribunal fee by the respondent by order of the tribunal. This has not been taken further on the basis that most tribunals apply this practice, at their discretion).
2. Assessment of the current whistleblowing ET1 referral system (whereby tribunals can refer claims to prescribed bodies). The Government decided no to proceed with mandatory referral, but undertook to monitor the voluntary process.
3. Requiring “prescribed persons” to report annually. This has now been implemented under the Prescribed Persons (Reports on Disclosures of Information) Regulations 2017 (SI 507/2017), which came into force on 01 April 2017.
4. Updating the prescribed persons list and reviewing it on an annual basis going forward.

Keeping the groups currently excluded from the protections under review with a view to consulting if further changes are considered necessary.

Extending the topics covered

The Government is keeping under review whether to add to the existing categories of protected disclosures. There is a case that “the abuse and misuse of power" and "gross waste or mismanagement of funds” would not be captured by existing categories. The Government has taken the view that the inclusion of such categories would create legal uncertainty, as the scope would be difficult to define and would be open to varying interpretation.