Are the long-awaited reforms to the UK Whistleblowing Framework on the horizon?

A government review of existing UK whistleblowing legislation is due to be published in Autumn 2023.  It is considered by many to be long overdue, with wide recognition that PIDA is no longer fit for purpose.  The Chair of the All Party Parliamentary Group (“APPG”) for Whistleblowing, Mary Robinson MP, described PIDA in a 2022 report as “discredited and distrusted law” which has “failed to protect whistleblowers or the public against wrongdoing and harm”. The pressure for reform has been particularly acute since the Covid-19 Pandemic, which increased focus on the legislation and highlighted the importance of whistleblowing in uncovering malpractice. The Care Quality Commission and Health and Safety Executive in particular saw sharp increases in reports. 

A key concern in relation to the current framework is that is does not provide sufficient protection to whistleblowers, as it merely allows a whistleblower to seek compensation in an Employment Tribunal after suffering a detriment for blowing the whistle, rather than seeking to prevent the detriment in the first place or dealing with the subject matter of the report itself. The cost of making a whistleblowing claim in the Employment Tribunals is high and waiting times are notoriously long. Given the complexity of the law, claimants rarely go unrepresented.  However, despite this, only 4% of claimants who bring whistleblowing claims succeed (APPG Report 2022).

Concerns have also been raised by Safecall, a whistleblowing hotline provider, which published a report in Q4 2022 highlighting some of the specific areas that are lacking in the existing UK legislation. The report concluded that 42% of whistleblowing investigators were reported to have had no formal training and only 17% of organisations use an independent, impartial whistleblowing provider. The report also highlighted that there is limited proactive encouragement of employees to speak up.

It is hoped by many that some of these failings will be addressed following the government review, and a tightening of the current UK whistleblowing framework can therefore be expected. This is likely to lead to greater obligations on employers, which could necessitate additional training, more investment in resources to handle whistleblowing reports, and a review of existing whistleblowing policies. 

Whistleblowing recap

In the UK, whistleblowing can broadly be described as the exposure of ethical or criminal wrongdoing through disclosures by workers within organisations. 

The UK whistleblowing framework, which is the subject of the government review, consists principally of PIDA and subsequent legislative and non-legislative interventions.

PIDA – Overview

PIDA provides protection against detriment for employees and workers who report malpractice by their employers or third parties, by inserting certain legislative provisions into the Employment Rights Act 1996 (“ERA”).  Under the ERA, whistleblowers who make a “protected disclosure” are protected from:

1. Unfair dismissal (s.103A ERA); and
2. Unlawful detriment (s.47B ERA).

Whistleblowing rights under PIDA are “day one” rights for employees and workers, who are broadly defined under the legislation and include employees, agency workers, freelancers, secondees, homeworkers and trainees. Certain individuals, including the genuinely self-employed, trustees and volunteers, are not covered by PIDA.

PIDA – (i) Qualifying disclosure

To attract protection under PIDA, a whistleblower must have made a “qualifying disclosure” under s.43B(1) ERA, which requires the following:

1. a disclosure of information (gathering evidence or threatening to disclose is not sufficient);

    

2. a reasonable belief that the information shows one of the failures listed at (3) below and is made in the public interest; and

    

3. the information relates to one of the following six types of relevant failures:
   1. a criminal offence has been committed, is being committed or is likely to be committed;
   2. a person has failed, is failing or is likely to fail to comply with a legal obligation;
   3. a miscarriage of justice has occurred, is occurring or is likely to occur;
   4. the health or safety of any individual has been, is being or is likely to be endangered;
   5. the environment has been, is being or is likely to be damaged; or
   6. any matter falling within (a) to (e) has been, is being or is likely to be deliberately concealed.

PIDA – (ii) Protected disclosure  

Once a “qualifying disclosure” has been established, the individual must show that it was a “protected disclosure”. This will depend on the method of disclosure. There are seven acceptable methods of disclosure contained in ss.43C to 43H of the ERA as follows:

1. to the employer;
2. to the person believed to be responsible for the relevant failure, e.g. a third party;
3. to a legal adviser;
4. to a Minister of the Crown;
5. to a prescribed person e.g. HMRC, the Health and Safety Executive; and
6. wider disclosure by way of:

1. external disclosure; or
2. disclosure of exceptionally serious failures.

Post-PIDA Interventions and Campaigns

Successive governments have sought to strengthen the provisions of PIDA.  In 2014 the government created a list of over 60 organisations and individuals who were appointed as “prescribed persons”, including public bodies such as the Care Quality Commission, the Financial Conduct Authority and Ofcom. In 2017, the government established a new requirement for the prescribed persons to report on whistleblowing reports they received.

Other interventions have come from the Financial Conduct Authority, which has taken various steps to bolster the whistleblowing framework and encourage a “speak up” culture in financial institutions. There have also been various campaigns by charities in a bid to expedite reforms. For example, Protect launched a campaign in 2021 called “Let’s Fix UK Whistleblowing Law”, which called for the UK law to be updated.

Government Review

On 27 March 2023, the government announced that it would be carrying out a review of the UK whistleblowing framework, which is due to conclude in Autumn 2023. The aim of the review is to examine the effectiveness of the whistleblowing framework in enabling workers to raise concerns about wrongdoing and protecting them in doing so.

The full scope of the review is accessible on the government website.  The three central topics of the review are: (i) who is covered by whistleblowing protections; (ii) the availability of information and guidance; and (iii) how employers and prescribed persons respond to whistleblowing disclosures.

The review will seek views from workers, employers, charities, regulators and tribunals to answer the following core research questions:

1. How has the whistleblowing framework facilitated disclosures?
2. How has the whistleblowing framework protected workers?
3. Is whistleblowing information available and accessible for workers, employers, prescribed persons and others?
4. What have been the wider benefits and impacts of the whistleblowing framework, on employers, prescribed persons and others?
5. What does best practice look like in responding to disclosures?

The review will also examine evidence related to the definition of “worker” for whistleblowing purposes and it is expected that the existing framework will be broadened to provide protection for a wider category of people.

Other reforms to the whistleblowing framework could be introduced by private member’s bills, which would seek to repeal PIDA. These include: (i) the Protection for Whistleblowing Bill, which seeks to establish an independent “Office of the Whistleblower” to assist with facilitating whistleblowing and act as a point of contact for whistleblowers; and (ii) the Public Interest Disclosure (Protection) Bill, which would create a new independent Whistleblowing Commission to set, monitor and enforce standards for the management of whistleblowing cases.

However, commentators have warned that laws alone will not fix the problem, and workplace culture is also key in establishing an environment where employees feel able to speak up.

EU-wide reform

The government review of the UK whistleblowing framework comes at a time of wider reform across the EU as implemented by the Whistleblowing Directive (Directive (EU) 2019/1937). Further information on the Whistleblowing Directive can be found on our website here as well as an implementation tracker, which can be accessed here.

Following the UK’s departure from the EU on 31 December 2020, the UK is not legally obliged to implement the Whistleblowing Directive, however in the UK/EU Trade and Cooperation Agreement, the UK agreed not to weaken or reduce its labour and social protections below the standard of the protections in existence as of 31 December 2020. It is therefore likely that the UK government review will take steps to align the UK regime with the provisions of the EU Whistleblowing Directive.

Key aspects of the Whistleblowing Directive which are not currently contained in PIDA include:

1. Increased scope of protection to cover self-employed contractors, non-executive directors, volunteers, job applicants and also “facilitators” who assist the whistleblower e.g. colleagues.
2. Organisations with 50 or more employees are required to set up internal reporting channels.
3. Procedural requirements in relation to investigating concerns, including requirements to: (i) acknowledge receipt of a report within seven days; (ii) maintain the confidentiality of a whistleblower’s identity except where necessary and proportionate to disclose it; and (iii) provide feedback to the whistleblower within three months.
4. An obligation to keep records of whistleblowing reports.
5. Provisions to protect whistleblowers from actions taken against them, such as defamation, breach of copyright, confidentiality, trade secrets and data protection.
6. Requirements to provide support measures for whistleblowers including: (i) independent, free and comprehensive legal advice; (ii) legal aid in criminal and cross-border civil proceedings; and (iii) assistance from regulators in providing protection from retaliation.

The Whistleblowing Directive sets the minimum standards for whistleblowing laws and EU countries can go beyond these requirements if desired.

One area that has not featured in recent EU reforms is the provision of financial rewards for whistleblowers. Rewarding whistleblowers for reporting wrongdoing is commonplace in the US and many consider this to have bolstered the whistleblowing culture there. In the UK, only HMRC and the Competition & Markets Authority pay rewards to whistleblowers, so this could be an area of focus in the future.  

Effect on Employers

Whilst it is not yet clear exactly how organisations will be affected, part of the government review includes assessing what constitutes best practice for employers, and employers can therefore expect to see increased procedural rules for dealing with whistleblowing reports in line with the EU changes. It is also likely that there will be requirements to set up improved reporting channels and a broadening of the groups of individuals that can blow the whistle. Employers should therefore keep their whistleblowing and grievance policies under review to ensure compliance with any new requirements. Internal training will also be required for individuals tasked with investigating whistleblowing concerns within organisations to ensure that they handle complaints effectively and escalate to independent investigators where necessary.

Updating policies and procedures should not be viewed as a tick-box exercise as even the best drafted policies will not be helpful if staff do not use them. According to a 2021 YouGov survey carried out by Protect, nearly half of staff did not know if their employer had a policy or not, so awareness-raising is clearly key. Subsequent guidance published by Protect in 2022 has highlighted that addressing whistleblowing reports effectively can save money and reputations and increase staff productivity and wellbeing.

International organisations will face additional compliance challenges due to the differences in local whistleblowing laws across Europe.  Employers seeking to implement international whistleblowing policies and procedures will therefore need to carefully review the different laws across jurisdictions to ensure policies are legally compliant.  Employers should note that whistleblowing processes (which will entail the processing of personal data, and sometimes special category data) also need to be compliant with data protection law governing how data is processed and whether it can be transferred between jurisdictions.

In light of the government review and EU-wide changes to whistleblowing legislation, reforms to the UK whistleblowing framework seem more likely than ever. The impetus is towards better protection for whistleblowers and increased obligations on employers, which will mean that employers are likely to have to grapple with new legislation. The timing of these changes is currently unclear but with the government review due to be published in the autumn, we may start to see changes next year.