With the first all-Conservative cabinet since the Public Interest Disclosure Act 1998 (PIDA) was enacted, Public Concern at Work – the UK’s Whistleblowing Charity – asks what the future holds for whistleblower protection in the UK.
Cathy James, Chief Executive (London). Here at Public Concern at Work we are geared up to continue our campaign to reform the Public Interest Disclosure Act 1998 (PIDA) as well as seeking much needed clarity in other areas that impact on workplace freedom of speech.
While PIDA is a rare example (globally) of a whistleblower protection law that is broad in scope, it is in need of reform. This is why we set up an independent commission in February 2013, to oversee a public consultation and gather evidence to examine the state of whistleblowing in the UK, including the effectiveness of PIDA.
In its report published in November 2013 the Commission concluded that current legislation is “not working” and immediate change is needed to ensure whistleblowers have the confidence to speak out without fear. The report made several recommendations for strengthening the whistleblowing law in the UK. These include a call for a statutory Code of Practice on whistleblowing arrangements, a simplification of PIDA, extending PIDA protection to job applicants, foster carers and many other groups of workers, a more expansive definition of wrongdoing, and strengthening the law’s anti-gagging provision.
The last government adopted a piecemeal approach to law reform. So while important improvements in government transparency and accountability were recently made, for example, imposing a duty on regulators to publish information about the whistleblowing concerns they receive and ensuring workers who disclose wrongdoing to their MP can seek full protection of the law, the opportunity for a comprehensive review of the law was well and truly missed.
Another opportunity missed was in the response to the recommendations made by Sir Robert Francis in the ‘Freedom to Speak Up?’ report into the state of whistleblowing in the National Health Service (NHS). The report followed the inquiry into an estimated 400-1,200 avoidable patients deaths at a hospital in Mid Staffordshire and called on the government to include protection for job applicants in the NHS. The report also called for the list of prescribed regulators to be extended to include all relevant national oversight, commissioning, scrutiny and training bodies in the NHS in England and Wales. Finally, Sir Robert asked the government to ensure that its proposal to widen the scope of the protection under the Employment Rights Act 1996 includes all students working towards a career in healthcare.
Instead of responding in a full and considered way, the government included a provision in the Small Business, Enterprise and Employment Bill (SBEEB) which provides the Secretary of State with a power (through regulation) to prohibit specified NHS employers from discriminating against job applicants who have blown the whistle (ie., where they have made a protected disclosure and can show that the decision not to recruit them was because of this). The SBEEB Act 2015 received Royal Assent in March 2015.
Further PIDA reform
Although Public Concern at Work welcomes these changes, we would like to see the new government undertake an in depth review of PIDA. The many problems identified by the Whistleblowing Commission and echoed by our recent Review of PIDA Claims (i.e., examination of judgements in whistleblowing cases at the Employment Tribunal) remain outstanding.
In our ongoing campaigning we will therefore be asking the new Government to:
- Enact a statutory Code of Practice for whistleblowing arrangements
- Broaden the scope of PIDA to include gross mismanagement of funds and gross abuse of authority and make the categories of public interest issues in PIDA illustrative rather than definitive
- Broaden the definition of workers, extending protection to foster carers, interns and students, non-executive directors and other categories of workers included in the UK equality legislation to bring PIDA in line with discrimination laws in the UK
Include protection for job applicants in all sectors, not just NHS workers in order to prevent the blacklisting of whistleblowers in any workplace
- Reform the unnecessarily complex legal precedent which distinguishes disclosures of information and allegations, and acts as an additional barrier for whistleblower claimants
- Consider the access to information provisions around PIDA claims
- Consider the options for creating an oversight body for whistleblowing case
- Examine the menial success rates of for interim relief claims
Protection of Sources
Outside of our campaigning around PIDA, we are also asking the new Government to clarify that whistleblowers will be protected from state powers to access private data. The Conservative manifesto pledges to protect journalists’ sources by banning police forces from accessing journalistic phone records which would identify whistleblowers without judicial approval. While this is a step in the right direction, we are concerned about the implications the revival of the “Snooper’s Charter” (a law that gives the government extensive surveillance powers) will have on whistleblowing more generally.
Public interest defence
We will be asking the Government to implement a public interest defence to protect whistleblowers from criminal prosecution if the public interest in disclosure of the information in question outweighs the public interest in non-disclosure. A defence would protect individuals such as Edward Snowden and Peter Francis who, in the process of disclosing information that is clearly in the public interest, break national security laws such as the Official Secrets Act or commit misconduct in public office. To this end, the Tshwane Principles offer a comprehensive guide to implementing this defence.
Access to justice, court fees and judgments
Our recent report into the operation of PIDA, highlights the myriad challenges facing whistleblower claimants. Based on these findings, we want the Government to review the fees structure at the employment tribunal for whistleblowing claims, legal aid should be available to whistleblower claimants and the costs regime should take into account the public interest in whistleblowing claims.
There is clearly much work to be done in this vital area of public interest legislation and in the backdrop of ongoing austerity measures and public spending cuts, now more than ever we need to have effective whistleblower protection legislation in the UK.
Public Concern at Work (PCaW) is a founding member of WIN.
The charity aims to protect society by encouraging workplace whistleblowing by:.
• Advising individuals with whistleblowing dilemmas at work
• Supporting organisations with their whistleblowing arrangements
• Informing public policy and seek legislative change
PCaW is encourages enlightened organisations to sign up its the First 100 campaign, to strive to meet best practice in their whistleblowing arrangements and encouraging others to follow their lead. Signatories include: Royal Bank of Scotland, Diaego, ITV, Civil Aviation Authority, the Nursing and Midwifery Council and Chelmsford City Council to name but a few.