Whistleblowing in the workplace

Whistleblowing has become increasingly common in recent years. Both the #MeToo movement and now the COVID-19 pandemic, have revealed a wealth of criminal activity and wrongdoing in the workplace. People are standing up, speaking out, and calling time on corruption.

That being said, making the decision to take action against the company or organisation you work for is a difficult one. You may fear the repercussions, and worry that putting your reputation on the line will harm future opportunities.

There is legislation created specifically to ensure the protection of whistleblowers, namely the Public Interest Disclosure Act 1998 (PIDA) and the Enterprise and Regulatory Reform Act 2013 (ERRA). However, whistleblowers should be aware of the potential risks they may face when pursuing action.

Others, who wish to expose wrongdoing in the workplace, may be unsure of that action they need to take, and wonder how exactly one navigates disclosure.

Read on to learn more about what is classified as whistleblowing, how effective the protective legislation is, and how to initiate the disclosure process.

What is whistleblowing?

Whistleblowing itself is quite a general term. It has no legal definition and encompasses many different facets. However, it can broadly be defined as the disclosure of information, relating to a suspected wrong-doing by an organisation or company.

The disclosure of wrong-doing must be made in the public interest and at least one “relevant failure” must have occurred.

Some of examples of “relevant failure” include:

• A criminal offence;
• Danger to health and safety;
• The breach of a legal obligation;
• Non-compliance with the law
• Risk of, or actual, environmental damage;
• A miscarriage of justice; or
• The belief that an individual has attempted to conceal wrongdoing

Some high-profile cases of whistleblowing include, the Cambridge Analytica case, the leaked Panama papers, the Rotherham grooming-gangs case and the 2013 NSA leak, to name but a few.

Are whistleblowers protected by law?

The UK introduced the Employment Rights Act in 1996, which introduced the first safeguards for employees seeking to “blow the whistle”. It was then amended in 1998, with the PIDA. At the time, it was the first piece of whistleblowing legislation in Europe, and perceived as “revolutionary”.

Commenting on its introduction back in 1998, Union Leader Rodney Bickerstaffe, said PIDA: “Paves the way for a new climate of openness and partnership at work”. Employment Lawyer Sara Barrett added that the new legislation meant: “There are laws in place to protect you – and your job.”

Years later, the legislation hasn’t really stood the test of time, or delivered the security it promised to provide.

However, under the whistleblower legislation, employees who come forward with a claim of “relevant failure,” are entitled to “protected disclosure”. This means that, in theory, the whistleblower will be protected from dismissal and detriment.

Protection for whistleblowers occurs if the following criteria is met:

• The individual makes a disclosure of information
• There is reasonable belief on part of the whistleblower, that said information shows one or more “relevant failures” have been committed

The disclosure can also relate to current events, incidents in the past, or situations that could happen at a later date in the future.

That being said, the legislation was expanded upon in 2013, with the introduction of the ERRA, which meant that its scope became much more limited. The changes of ERRA, meant that in order for an employee to make a disclosure, there had to be “reasonable belief” that the case was in the public interest.

Meanwhile, those entitled to “protected disclosure” include:

• Employees or former employees
• Trainees
• People working under a contract for services
• Independent contractors
• Agency workers

Although, some types of disclosure are not protected. This includes disclosures that are prohibited under the Official Secrets Act 1989.

Is this protection sufficient?

There are a number of risks involved in whistleblowing, and reports investigating the level of security PIDA provides, have found it wanting in a number of key areas.

In 2019, an All-Party Parliamentary Group (APPG) released a report on the effectiveness of PIDA. In a survey with 336 responses in total, it found that the two main threats facing whistleblowers in the UK were; inaction and retaliation. Unveiling the prevalence of organisations’ employing the “Deny, Delay, Defend” approach, it showed that in 55.3% of cases, no action was taken.

Meanwhile, a shocking 77.8% of respondents, said that they had faced retaliation after making a report. Even when whistleblowers raised their issue a second time, there was little movement. In 11.7% of cases, the wrong-doing was addressed, but in 64.2% of cases no action was taken at all. On top of this, the majority of respondents, 91.2%, said that the organisation had not followed the appropriate whistleblowing procedures, as instructed by the Advisory, Conciliation and Arbitration Service (ACAS).

Ultimately, the report concluded that the legislation required a “radical overhaul,” to sufficiently support citizens.

The same kind of concerning results were produced by research recently conducted by Protect, a whistleblowing charity. The study assessed the whistleblowing cases of 352 finance workers, who called the Protect Advice Line, concerning workplace wrongdoing between January 2017 and December 2019.

The study revealed that 70% of those who reported workplace wrongdoing were “victimised, ignored, dismissed, or felt forced to resign after whistleblowing”.

How do you navigate disclosure?

Once you’ve discovered whether or not your issue counts as a “relevant failure,” and if you qualify for protected disclosure, you may have questions around how to navigate your next steps. When it comes to disclosure, employees have three main options.

Most of the time it is appropriate to make a protected disclosure internally, to your employer, as is recommended under the legislation. While there is no legal obligation for organisations and companies to adopt internal reporting procedures for whistleblowers, it is recommended and usually contained in a company’s employee handbook.

Alternatively, if you fear the repercussions of internal reporting, or are concerned about a potential coverup, you can either make a protected disclosure externally to a prescribed person (HMRC or your MP) or an external body (FCA).  

Additionally, when it comes to time-limits, in 2013, the Employment Appeals Tribunal confirmed that disclosure made after employment ends, is still protected.

There are also a number of organisations out there that provide whistleblowers with practical guidance on how to take forward their issues. This includes, but is not limited to, Protect, which provides free and confidential advice, the NSPCC, and WhistleblowersUK.