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Whistling in the wind: why do we not protect employees who come forward?

Whistleblowing law requires long overdue reform

By John Bowers  

Dr Li Wenliang tried to warn the world Photo: Yichuan Cao/SIPA USA/PA Images

Whistleblowing is essential to the rule of law. The Council of Europe says that “whistleblowing is a fundamental aspect of freedom of expression and freedom of conscience,” and that it “is important in the fight against corruption and tackling gross mismanagement in the public and private sectors.” Ignoring a whistleblower can be very costly for an organisation.

Britain had one of the strongest legal protections in the world when the Public Interest Disclosure Act was passed in 1998, but it now needs to be reviewed—not least because the legislation has turned out to be complex and clunky. Only 12 per cent of whistleblowers who bring a claim in an employment tribunal are currently successful.

The Covid whistleblower

The pandemic has highlighted the crucial need for whistleblowers to come forward, and underlined the necessity that the allegations they make be investigated by the relevant supervising bodies. Without this guarantee, they are often just whistling in the wind.

Probably the most celebrated Covid whistleblower is the Wuhan doctor Dr Li Wenliang, who selflessly tried to warn of the dangers of the coronavirus outbreak and was reprimanded by the Chinese government for his “false comments,” before dying of the virus. The whistle has since been blown loudly in the UK on (inter alia) the safety of PPE, the legality of procurement processes, whether workplaces are Covid secure, and fraud on the furlough scheme (it is bizarre that the fraud reporting line of HMRC was closed down at the start of the pandemic).

From the first few weeks of lockdown until the end of September, Protect, the excellent legal charity which supports whistleblowers, saw a 37 per cent increase in calls to its advice line. Its report “The Best Warning System” reveals that there are alarmingly high rates of concerns simply being ignored by employers (41 per cent of cases), and still far too many whistleblowers (20 per cent) being dismissed from their jobs.

Blaming the messenger

As someone who often acts for and against whistleblowers, I speak from experience in saying they have all sorts of motives for doing what they do, ranging from pure public spiritedness to (in a few cases) enmity towards the employer and mercenary intent. Reporting on your employer can lead to great trauma; many feel the legal system fails them and there is loneliness like that of a long-distance runner. Aaron Westrick, who sounded the alarm about defective body armour, speaks from experience: “If there’s one word that describes being a whistleblower, it’s loneliness. Even your friends don’t really get it.” Some become obsessed with their cases and will never let go. In some instances, people have sacrificed their entire career along with their mental health. Solomon Asch, the social psychologist, states that even the strongest-willed individuals may find the burden of standing out from the crowd unbearable over time. The research suggests that there is a disproportionate impact on women.

Some of the claims made by whistleblowers are verifiable; some are wild. What is clear—and open to remedy—is that the hurdles placed in the way of the genuine whistleblower are too great and the rewards too few (although some have been feted and received sympathetic portrayals in Hollywood films).

Too often those who speak out present, or are represented as, “trouble.” The imbalance of power is huge. Retaliation is a common theme. The tactics used by many employers may be summed up as: “deny, delay, destroy.”

“Blaming the messenger” is the big problem, which the law could tackle more directly. It is typical that one job applicant was told by a recruiter: “I’ve googled you and you come out as a whistleblower, and I don’t want to jeopardise my relationship with my clients.”

Supported, not victimised

The only way for a whistleblower who has suffered detrimental treatment or dismissal to gain redress at present is through an employment tribunal claim. But this can take years to go through the system—particularly with the current pandemic backlogs and because many such cases are appealed—and very rarely results in an employee getting their job back (and for some of course that will be the last thing they want).

There are markedly different levels of protection dependent on whom you tell, with greater safeguards for those who raise the alarm internally than those who go straight to the media. There are good arguments for this. But the system is too complex. Even tribunal lay members find it very difficult to understand the law. The fragmentation of the regulatory framework is extreme.

Alarmingly, we lack a duty on employers and regulators to investigate concerns and feedback the findings to the whistleblower. Further, the whistleblower cannot make a claim against a regulator for mistreatment. Those who come forward need to know they will be supported and not victimised—but at the moment they cannot be sure.

What should be done

There were few concrete proposals for reform until recently when, like the proverbial London bus, three came along at the same time. Philippa Whitford’s Public Interest Disclosure (Protection) Bill received its Second Reading in September, while Susan Kramer’s alternative bill has not been discussed yet. Protect has its own draft legislation and continues to campaign for wider protections.

One key point across these proposals is the introduction of a legal obligation on employers to bring in whistleblowing arrangements, including a requirement to give feedback on concerns raised (although some public sector employers already provide for this). There is also the possibility of a penalty regime where a company or organisation might be fined or sanctioned for breaching standards. Criminal penalties, however, are often a blunt tool, as the authorities may not pursue prosecutions with vigour; they are in the “too difficult” category.

The imbalance of power is exacerbated by the fact that only one in three employees has legal representation when they pursue a grievance to tribunal, whereas 80 per cent of employers are represented. There should be some protection against cost penalties; whistleblowers can encounter bankruptcy for their pains. There might also be a reversal of the burden of proof so that employers have to prove that any retaliation was not because of the revelation made.

There is a virtual consensus that there should be wider protection of more people, including volunteers, self-employed workers and job applicants. More generally, the structure might be simplified by rendering it unlawful to discriminate against, victimise or harass an individual for a protected disclosure. Then the panoply of discrimination rights would be given to the whistleblower.

There have been suggestions in the past of rewards for whistleblowers but this has been rejected. It is probably time to reconsider that approach.

A new commission

More far-reaching still is the idea of some form of commissioner or Office of the Whistleblower to investigate a concern or unfavourable treatment, set standards and administer penalties. This might be linked with champions on boards from among the whistleblower community who could give insight from their lived experience.

This body would, in the proposal of the All-Party Parliamentary Group on Whistleblowing: “develop standards of practice for whistleblowing policies and procedures and monitor the compliance of organisations with those standards. Such standards would include how issues should be investigated, and organisations would be expected to show what action they had taken to address cases. The standards would stipulate prospective protection of the whistleblower from detriment, from the point of their making a disclosure.”

It is difficult to disagree with the conclusion of the APPG that “the UK regulatory framework of protection is complicated, overly legalistic, cumbersome, obsolete and fragmented.”

Improvements must be made—and quickly. But ultimately, while protection by the law is necessary in this area, it is not sufficient. Legal support can only go so far; equally important is the culture of the particular working environment in which the whistleblower operates and indeed the culture of society more generally. Changes in attitude must accompany changes in the law.

John Bowers is co-author of the third edition of “Whistleblowing: Law and Practice” (OUP)

This article features in Prospect’s new legal report in partnership with the Bingham Centre for the Rule of Law, Jones Day and the City of London Corporation

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