Protect, the UK whistleblowing charity established to promote ethical standards of conduct and compliance with the law, will be 30 years old next year – and the Public Interest Disclosure Act 1998 (PIDA) is only five years younger.
Standards of conduct and what we mean by whistleblowing have evolved in that time. 20 years ago, most of what Protect advisers heard about was financial misconduct or patient safety. The range of concerns is now dramatically wider, from greenwashing to anti-trans discrimination. Our 2021 Impact Report shows that, since 2017, the proportion of harassment cases reported to us has increased by 100%. After #MeToo and Black Lives Matter, what were once seen as purely individual grievances may now easily pass the public interest test. A sign of the change is that regulators consider that culture is part of their remit; we have come a long way from the time when disclosures were less likely to be protected if the whistleblower also had a private interest in raising them.
Expanding the scope of protection
After 25 years, there are some who argue that, due to PIDA’s low success rate at full hearing, the law is no longer fit for purpose. Yet we should not throw the baby out with the bath water when there is definite room for improvement, especially when the success rate at tribunal is comparable with other types of claim and does not consider the number of cases that settle. The official tribunal statistics for 2020/2021 show that only 3% of PIDA claims issued were successful at hearing (and 33% were resolved through Acas conciliation). Similarly, only 3% of race discrimination claims issued were successful at full hearing (and 29% were settled via Acas conciliation).
Reform should start with the need to fit PIDA into the 21st century gig economy, where there is no all-encompassing definition of “worker”. We need to expand the scope of whistleblowing protection. The EU Whistleblowing Directive 2019/1937/EU (Directive), which has now been implemented in ten EU member states, relates to “work-related activities” and expressly protects job applicants, the self-employed, shareholders, non-executive directors, volunteers (including trustees) and trainees – unlike PIDA which is much more limited in scope.
Imbalance of power
But more importantly, because of the power imbalance between the organisation and individual whistleblowers, it is often extremely difficult for whistleblowers to obtain any kind of redress for retaliation suffered, let alone ensure the concern is addressed.
The YouGov research we commissioned in spring 2021 showed that only 31% of workers knew how to raise a concern at work. And our report examining COVID-19 whistleblowing concerns reported to our Advice Line in 2020 showed that 41% of whistleblowers felt ignored when they raised their concerns and 20% were dismissed as a result.
This may be because our law does not impose any minimum standards on employers. PIDA is only concerned about “after the event” retaliation. There is no positive requirement for organisations in the UK to have any particular whistleblowing process (outside a few regulated sectors, such as financial services). In the EU, the Directive requires employers with 50 or more workers to establish internal reporting channels and imposes strict deadlines to acknowledge and feedback on concerns raised. Impartiality, confidentiality and clear details on how to report externally to a relevant regulator are all required. This a change we should introduce in the UK.
Difficulty in succeeding at tribunal
Finally, we need to address the difficulty in winning a claim in the employment tribunal. The Directive reverses the burden of proof in whistleblowing claims so that, once a whistleblower demonstrates that they reported a breach and suffered a detriment, the burden of proof shifts to the person who caused the detriment to demonstrate that the detriment was not linked in any way to the whistleblowing and was based on justified grounds. The Directive also requires national governments to provide sources of free and independent legal advice and assistance to whistleblowers.
Protect’s proposal is to simplify the UK’s whistleblowing regime and harmonise it with the discrimination rules, which are much better understood by both employers and workers. There should not be different tests depending on whether you claim whistleblowing dismissal or detriment, for instance. Ms Kong’s plight illustrates this rather starkly (Kong v Gulf International Bank (UK) Ltd [2022] EWCA Civ 941, in which Protect intervened).
Kong
Ms Kong was Head of Internal Audit at Gulf Bank and alerted the Head of Legal that the new investment products the bank wanted to sell were not regulatory compliant, which was indeed the case. The Head of Legal, who was partly responsible for the legal assessment, took this very badly and complained to HR that she did not want to work with Ms Kong anymore. The senior partners took the view that Ms Kong should be summarily dismissed because of her behaviour and manner towards the Head of Legal when raising her concerns.
Despite finding that Ms Kong had raised her concerns in a reasonable manner, the Tribunal decided that the fact that the dismissing officers considered her conduct to be unacceptable was enough to defeat her claim of automatically unfair dismissal. However, the Tribunal accepted that Ms Kong’s detriment claim would have succeeded had it not been brought out of time – which feels particularly unfair in cases such as whistleblowing where it is more appropriate to see the raising of concerns (and the victimisation resulting from it) as a journey rather than an act at a particular time.
This is despite the fact that the Court of Appeal agreed that the purpose of PIDA is to “encourage responsible whistleblowing” (Babula v Waltham Forest College [2007] ICR 1026). There was no dispute that Ms Kong was acting as a responsible whistleblower.
When PIDA was introduced, Lord Borrie said in a House of Lords debate that it should send “a clear signal to people in places of work up and down the country that if they suspect wrongdoing, the law will stand by them provided they raise the matter in a responsible and reasonable way”.
But this was not the case. Ms Kong suffered dramatic retaliation and was denied any whistleblowing remedy. The UK framework appears inconsistent, unduly complex and just too difficult to access to ensure workers’ statutory whistleblowing rights. This risks having a chilling effect on workers’ willingness to “speak up” in the workplace, in the knowledge that even where that is done in a manner which is “conciliatory in tone and careful”, and is to be regarded as “acting reasonably” (as the employment tribunal found in Ms Kong’s case), they may nevertheless be denied protection from retaliatory treatment. Ms Kong is currently seeking permission to appeal to the Supreme Court.
Whistleblowing is good for workers who should feel psychologically safe at work, it is good for businesses who can detect and deter wrongdoing, foster productivity and loyalty, and it is good for society as a whole. It should not be controversial to be able to raise concerns safely when things go wrong: freedom of speech is a cornerstone of our democracy and whistleblowers are acting in the public interest.
So we need to improve our current law. It affects us all.
