It would be true to say that the principle of “whistleblowing” is unlikely to be one that is at the top of your business’s agenda. It’s often seen as being an issue for those working in larger businesses or the public sector, but it’s also true to say that many businesses (quite rightly) do adopt a policy on whistleblowing and the reasons for this are often about protecting the business itself.
Currently, employees can raise Employment Tribunal claims if they have suffered detrimental treatment after having disclosed information that is protected. Protected disclosures include information about a criminal offence, the breach of a legal obligation, a miscarriage of justice, dangers to health and safety or environmental damage.
Recently, the All-Party Parliamentary Group (APPG) found that employees who raised genuine concerns were too often faced with either ‘inaction or retaliation’. More than 75 per cent of those interviewed said they had faced bullying, demotions, pay reductions, suspensions or forced dismissals for speaking out. They have produced a report which has 10 recommendations:
- The term ‘whistle-blower’ should be defined in law.
- The legal definition of whistleblowing should include individuals raising concerns about any harmful violation of integrity and ethics, even when such concern is not criminal or illegal.
- Whistle-blower protection should extend to members of the public.
- Mandatory internal and external reporting mechanisms should be adopted to include meaningful penalties for those who fail to meet the requirements.
- A review of compensation must be carried out. The APPG considers current levels of compensation are often too low. For example, one whistle-blower disclosed that their pre-trial costs were £78,000 and the average award of compensation for unfair dismissal in 2017-18 was £15,000.
- An urgent review of the barriers to justice, including access to legal aid, should be carried out, and measures including protection against costs awards should be introduced.
- A prohibition of non-disclosure agreements in whistleblowing cases should be enforced.
- Regulatory framework and coordination should be improved, to include international best practice and a public awareness campaign.
- An urgent review of the prescribed persons list must be carried out, and a more comprehensive guide to their role and measures to ensure they fulfil their responsibilities introduced.
- An ‘independent office for the whistle-blower’ should be established, with powers to enforce protections and administer meaningful penalties.
What does this mean for businesses?
The report is the first of three that the APPG plans to publish, they will go on to survey regulators, government departments and trade unions. Finally, they will consider views by MPs, the Lords, the Judiciary and Journalists.
Although the report recognises that the law on whistle-blower protection is well developed compared to the EU, the APPG concludes that more needs to be done to improve our domestic law, which is “complicated, overly legalistic, cumbersome, obsolete and fragmented”. While this is only a recommendation, the report gives a clear indication that legislative changes to provide further protection for whistle-blowers are on the horizon.
At this stage there is a need for greater protection to ensure organisations are notified of malpractice, without individuals fearing retaliation. The APPG considers it is important that employers are held more accountable for not providing this protection.
Like discrimination cases, there is no cap on the compensation that an Employment Tribunal may award to a whistle-blower. A company’s reputation can be seriously damaged if protected disclosures are not handled appropriately. Employers will benefit by developing a culture where individuals are appreciated for bringing genuine concerns to the company’s attention.
Overall this is likely to lead to a change in your written policies but possibly more importantly an awareness that you, as a business, will be held more accountable.
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