The Department for Business and Trade has launched a review of the legal regime that supports workers who blow the whistle on wrongdoing in the workplace, explaining it will seek feedback from whistleblowers, as well as key charities, employers and regulators.
Current whistleblowing framework
With the above in mind, it is helpful to start with a brief overview of the current legislative framework designed to protect whistleblowers in the workplace.
Firstly, a whistleblower has to demonstrate that they have made a “qualifying disclosure” which must meet each the following criteria:
- It must be a disclosure of information.
- The disclosure of information must relate to one of the six specified types of wrongdoing below:a. A criminal offence,
a. a criminal offence,
b. a failure to comply with a legal obligation,
c. a miscarriage of justice,
d. danger to someone’s health and safety,
e. damage to the environment, and / or
f. deliberate covering up of any of the wrongdoings above.
The whistleblower must reasonably believe their disclosure shows wrongdoing.
The whistleblower must believe that the disclosure is made in the public interest and that belief must also be reasonably held.
If a qualifying disclosure can be established, the whistleblower must then show it is a “protected disclosure” which depends on who they have made the disclosure to. Legislation states that the disclosure must be made by the whistleblower to their employer (although doesn’t specify who) or else a person prescribed by an order made by the Secretary of State, for example the FCA and PRA. Wider disclosure to other entities, such as the press, is only permitted in limited circumstances with rigorous conditions.
If the above conditions are met, workers (a wider category than employees) are protected from suffering a detriment (such as a failure to promote, denial of training, bullying or harassment, demotion, failure to investigate concerns etc), and employees are protected from being dismissed where the disclosure was the reason or principal reason for dismissal.
The terms of reference of the review states that its purpose is to examine the effectiveness of the whistleblowing framework in meeting its objectives, which are to provide a route for workers to blow the whistle, to protect those who do or else provide redress, and to support wider cultural change where the benefits of whistleblowing are recognised.
The review will focus on key topics in the whistleblowing framework, including:
- Who is covered by whistleblowing protections.
- How the current framework protects workers.
- What the wider benefits and impacts of the framework have been.
- How employers respond to whistleblowing disclosures, including best practice.
Potential implications for employers
First introduced nearly 25 years ago, the UK’s current whistleblowing framework is increasingly criticised as out-dated and complex. Often cited gaps in the current regime include the fact that whistleblowers only have legal protections if they are subject to a detriment or dismissed as a result of their disclosure, and that there is no protection for people who do not meet the category of worker or employee, leaving individuals such as job applicants, trainees, trustees and volunteers unprotected.
Last year an All-Party Parliamentary Group on whistleblowing highlighted a decline in the number of whistleblowing reports being made and found that only 4 per cent of people who bring claims succeed. It called for a total overhaul of the protections in place. The review will likely bring these key criticisms of the current legislative system, and therefore potential areas for change, to the government’s attention.
The UK also stands at risk of falling behind internationally in the protection it offers to whistleblowers. In December 2019, the EU Directive on the protection of persons who report breaches of Union law came into force in Europe. Following Brexit, the UK was not required to implement this, with the result that some key differences in protection are starting to emerge. For instance, the EU legislation reverses the burden of proof on the detrimental element of a claim and contains an express list of the types of actions which may constitute prohibited retaliation, including on social media. It is also wider in scope than the UK provisions, protecting the self-employed, board members and shareholders, as well as people connected to the whistleblower. It will be interesting to see if the government’s review results in changes being made which bring the UK closer to the position now in Europe.
We will keep you updated of the resultant changes, if any, to come from the review which is expected to be concluded by Autumn this year.
If you require further information about anything covered in this blog, please contact Caitlin Farrar or your usual contact at the firm on +44 (0)20 3375 7000.
This publication is a general summary of the law. It should not replace legal advice tailored to your specific circumstances.
© Farrer & Co LLP, April 2023