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Tag: Whistleblowing detriment

The outcome of a review of the UK whistleblowing framework is due soon.

Tamsin James considers the scope of the review, the flaws in the current framework and what needs to change.

 

The UK Whistleblowing Framework – time for change?

The Lucy Letby trial dominated the news this Summer.  When a BBC investigation revealed that the paediatric consultants on the unit on which she worked had raised concerns about her as far back as 2015 but had reportedly been ignored, many people were shocked.  The specific detail of those concerns will be for the independent inquiry to determine, but it is likely they’d have met the definition of a “protected disclosure”.

Hearing the concerns and frustrations of the consultant in the BBC investigation chimes with my own experience advising and supporting those who’ve raised concerns in their workplace.

The legislative protection for “whistleblowers” has been in place for over 25 years.   Attempts to tweak it have achieved little substantive change and have revealed many complexities and challenges around the protection for whistleblowers.  It remains a “clunky” piece of legislation overall.  It requires much of those seeking to rely upon it for protection.

A review of the UK Whistleblowing framework

So, it is good news that 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 UK workplace. Feedback is being sought from whistleblowers but also from employers, charities and regulators.

Core research questions in the review are:

  • how has the whistleblowing framework facilitated disclosures?
  • how has the whistleblowing framework protected workers?
  • is whistleblowing information available and accessible for workers, employers, prescribed persons and others?
  • what have been the wider benefits and impacts of the whistleblowing framework on the above?
  • what does best practice look like in responding to disclosures?

Watch out for the results of this review.  The Department has said that the research will be concluded this Autumn. The research should then inform government policy choices to develop and improve the whistleblowing framework.

The review is timely in light of implementation by EU member states of the EU Whistleblowing Directive (Directive (EU) 2019/1937).  The UK is not subject to this since Brexit but it imposes more stringent obligations than those imposed by UK legislation.   Some large UK employers are already implementing the EU obligations into their policies and procedures.  The US has also expanded protection.

Within the UK, the All Party Parliamentary Group on whistleblowing has been campaigning for change as has Protect, the UK’s whistleblowing charity.

In our experience, there can be confusion amongst both individuals and employers about whether, when and how a disclosure needs to be made, or has been made.

This means some disclosures are not properly identified, captured and investigated at an early stage.  Individuals are left fighting a lone battle, protection is patchy and unfortunately, the initial response is often a defensive one.

Good employers should recognise when concerns are made and have a robust policy and procedure for dealing with complaints, as well as clear oversight and governance at a senior level.

What does the current whistleblowing framework look like?

Under the current legislation, a whistleblower has to demonstrate that they have made a “qualifying disclosure”.  In order to do so, the whistleblower has to show that they met ALL the following criteria:

  • It must be a disclosure of information (not merely an allegation);
  • It must relate to one of six specified types of wrongdoing:
  1. a criminal offence
  2. a failure to comply with a legal obligation
  3. a miscarriage of justice
  4. a danger to someone’s health and safety
  5. damage to the environment, and / or
  6. deliberate concealment of any of the wrongdoings above.
  • The whistleblower must reasonably believe their disclosure shows the wrongdoing relied on
  • The whistleblower must believe that the disclosure is made in the public interest and that belief must also be reasonably held.

A qualifying disclosure will only be “protected” if it is made to the right person, which can include their employer.  Importantly, it does not specify a person or mechanism within the “employer”, leaving line managers and colleagues potentially unwitting recipients of “qualifying disclosures”. A disclosure to other entities, such as the press, is only permitted in limited circumstances with rather rigorous conditions.

Only if the above conditions are met, does the worker (a wider category than employee) have protection from suffering a “detriment” or being dismissed, in broad terms, for making the disclosure.  And proving the link between the disclosure and the treatment can be an evidential challenge for individuals.

Potential implications for employers

The current legislation has a number of complexities, gaps and traps for the unwary including:

  • A “protected disclosure” does not have to be labelled as such – it is the content that matters. Employers should make sure that there is training so that everyone can identify a disclosure as such and deal with it accordingly.
  • Conversely, just because an individual says that they have made a “protected disclosure” does not mean that they have – the rules defining these remain complex and require scrutiny.
  • A policy and/or a procedure does not convey protection, but it is crucial for oversight, governance and providing a safer space for employees and for monitoring the number and incidence of concerns.
  • The concept of “detriment” is a wide one – it can be very difficult for a manager or colleagues to act in the same way once someone has whistle blown. Employers should consider how this can be dealt with.
  • Careful thought needs to be given to the resolution of concerns. One of the criticisms by the consultant in the Letby situation was that he was told that mediation was the desired option. This is not always appropriate. Consider also how the underlying wrongdoing that is the subject of disclosure will be investigated and who holds responsibility for that – it is not always appropriate for this to be an “HR issue”.
  • There is a little known by punitive sanction called “interim relief” which is occasionally granted where a whistleblower has been dismissed.
  • A lack of protection for people who do not meet the category of worker or employee, leaving individuals such as job applicants, trainees, trustees and volunteers without protection.

An All-Party Parliamentary Group on whistleblowing has previously highlighted a decline in the number of whistleblowing reports being made. The prospects of winning are low, only 12% of whistleblowers are successful in a case against their employers.

As always, we’ll keep you posted once the review concludes.  In the meantime, please do get in touch if you or your organisation needs support on a whistleblowing issue.

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