Government announces Lasting Power of Attorney “revamp”
UK law has granted protection for those who raise concerns of potential wrongdoing in the workplace (whistleblowers) since 1999 through the Public Interest Disclosure Act 1998.
The EU, when considering what its own whistleblowing protection laws should look like, recognised that the UK already grants comprehensive protection for whistleblowers. Nevertheless, there are differences between the position in the UK and the requirements of the EU Whistleblowing Directive (the “Directive”) which Member States were required to transpose into domestic law by 17 December 2021.
This article provides a summary of the UK whistleblowing regime currently in force and the main differences between that and the provisions of the Directive.
The protection provided by whistleblowing legislation is afforded to employees, agency workers, members of limited liability partnerships, judicial office-holders and workers who are not employees.
There is no minimum service requirement in order to bring a whistleblowing claim (protection is a “day one right”) and, significantly, there is no cap on the amount of compensation that may be awarded in whistleblowing claims (unlike in standard unfair dismissal claims).
If an employee is dismissed because they have made a “protected disclosure” (i.e. blown the whistle), that dismissal is automatically unfair.
Those who are not employees are protected from being subjected to detrimental treatment as a result of making a protected disclosure (for example, by being subjected to unfair treatment, harassment or victimisation). Similarly, employees are also protected from being subjected to detriment short of dismissal.
In order for someone (the whistleblower) to be protected, they must make a disclosure of information which, in their reasonable belief, is made in the public interest and tends to show that wrongdoing relating to one or more of the following has, is, or is likely to occur:
The most common type of wrongdoing we come across in practice is in relation to a failure to comply with a legal obligation, which is widely interpreted and includes breaches of regulatory requirements. For example, an employee raising concerns that their employing bank is not complying with the rules of the Financial Conduct Authority (“FCA”) would fall within this category.
Further, there has been an increase in disclosures regarding health and safety matters in light of issues faced as a result of the pandemic (with regard to the supply of appropriate PPE, or appropriate measures being put in place before individuals are required to return to the workplace, for example).
Other requirements regarding disclosures include the following:
The disclosure should normally be made to the individual’s employer. If the employer has a whistleblowing policy in place, this should be followed.
If the employer’s whistleblowing policy authorises the disclosure of concerns to a third party (a whistleblowing hotline, for example), disclosure can be made by that channel in accordance with the policy and the individual will be treated as having made the disclosure to their employer (and therefore qualify for protection).
It is also possible to make a disclosure to a “prescribed person” as specified by statute, such as HM Revenue & Customs, the Health & Safety Executive, the Serious Fraud Office and regulators such as the FCA.
However, it is important to note that, in order to be protected, persons making a disclosure to a “prescribed person” must reasonably believe that the matter being reported is within the remit of that entity and that the information disclosed is “substantially true”. This is an additional hurdle that does not apply when making the disclosure to the employer. Contacting a regulator should not, therefore, be a knee jerk reaction without consideration of these principles.
In exceptional circumstances, disclosures made to others such as the media can also be “protected disclosures”, but those are beyond the scope of this note.
One of the most difficult aspects of bringing a whistleblowing claim is establishing causation. That is, demonstrating that one has been subjected to a detriment (such as being ostracised, bullied, denied promotion or a pay rise, etc) on the ground that they have made a protected disclosure. This requires a close analysis of the facts of each individual case to establish whether it can be shown that the making of the protected disclosure materially influenced the detrimental treatment.
This causation test is even more difficult in cases involving dismissal in that, for the dismissal to be automatically unfair on grounds of whistleblowing, it must be shown that the sole or main reason for the dismissal was the making of the protected whistleblowing disclosure.
In practice, most employers do not simply dismiss employees because of them raising whistleblowing concerns about wrongdoing in the workplace. More commonly, such raising of concerns may lead to an employee losing support of management and perhaps receiving a poor appraisal or bonus or being subjected to a performance improvement plan on allegedly unrelated grounds and/or being more likely to be made redundant.
Some regulated sectors (health and financial services, for example) have specific and more onerous requirements regarding whistleblowing.
The financial services sector in the UK is regulated by the Prudential Regulation Authority (“PRA”) and the FCA. Both the PRA Rulebook and the FCA Handbook contain specific rules and policies on whistleblowing.
Organisations within the scope of those rules are required to appoint a “whistleblowing champion” (a senior manager or director (preferably a non-executive director)) who is responsible for overseeing the effectiveness of whistleblowing policies and procedures within that organisation. They must also establish internal whistleblowing procedures which comply with the regulators’ rules and inform their staff about those procedures, the role of the PRA and FCA and of their rights under whistleblowing legislation.
In March 2021, the FCA launched a whistleblowing campaign, “In confidence, with confidence”, encouraging individuals working within the financial services sector to come forward and raise any concerns they have regarding potential wrongdoing, emphasising its commitment to protecting their identity. The FCA also committed to create a report about all concerns which have been expressed and to provide updates to a whistleblower every three months if so requested.
Having left the EU, the UK is not going to implement the Directive, although it is worthy of note that, under the Trade and Cooperation Agreement, the UK and EU are required to commit to “a level playing field” with regard to the levels of protection in labour and social standards. The UK government should be mindful of this when considering any reforms to existing legislation.
Notable differences between the Directive and UK law include:
It was reported in March 2021 that the UK Government has committed to reviewing existing whistleblowing laws given the record number of whistleblowing cases brought before the Employment Tribunal in recent years.
The whistleblowing charity, Protect, has also launched a campaign, “Let’s Fix UK Whistleblowing Law” calling for UK law to be updated so as to preserve the UK’s status as a leading example of a country providing comprehensive whistleblowing protection.
Progress has so far been slow. The nature of any reforms that will be made and the timing of their implementation remains to be seen.
Özlem Mehmet is a Professional Support Lawyer in our Employment Team. Before joining Kingsley Napley, Özlem was a Tutor and Team Leader at BPP University’s Law School, teaching on the Legal Practice Course. She taught the Employment Law, Business Law & Practice, Corporate Finance and Equity Finance modules of the course, as well as the skills modules of Interviewing & Advising and Professional Conduct & Regulation. She also supervised a number of Masters level projects on employment law related topics.
Andreas White is a partner in our employment team. He has substantial litigation experience, with a particular focus on complex and high-value employment and partnership disputes. Andreas has a particular interest in international and cross border employment law. He is a former president of the labour law commission of AIJA.
Professional Support Lawyer
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