Dave Lewis: Professor of Employment Law, Middlesex University

14 January 2016

Dave Lewis, Professor of Employment Law, Middlesex University

If you became aware of wrongdoing within your workplace, who would you go to? Most would go to their line managers, and normally this is the best thing to do; but what if your line manager does nothing? And what if you don't trust them, or you believe they may even be complicit in the issue you wish to report? At this stage, many people's intuition would be to disclose the matter to their trade union rep, but if doing so is not part of the workplace's whistleblowing procedure, then they are not protected by the Employment Rights Act 1996 and could be dismissed.

The UK's whistleblowing law is alarmingly weak compared to that of many other nations. Workers are legally protected from dismissal and/or retaliation (such as harassment at work) if they follow the employer's whistleblowing procedure, but employers are not obliged to have a whistleblowing procedure (most do, however, either because it is best practice or because they have a self-interest in knowing what problems arise in their business before such information is 'leaked'). This protection is reduced by the inclusion into many organisational procedures of tests of 'public interest' and 'good faith', in which workers can be legally dismissed for reporting issues that are considered to be of interest to the individual (such as an isolated instance of bullying) rather than to the public (such as a widespread bullying culture that is institutionally tolerated); or because they are considered to have an ulterior motive in blowing the whistle. Currently, workers do not find out whether they pass these 'tests' until the case has reached tribunal, at which point it may be too late to save their livelihoods.

Beyond this meagre protection, the UK's whistleblowing laws are toothless. Organisations may be fined for wrongdoing - such as bribery, corruption, negligence to service users or causing environmental hazards - but for many private sector enterprises this slap on the wrist is financially worth the risk. Furthermore, companies are trusted to rectify the wrongdoing which has been reported, but not held to account, so there is nothing to stop organisations from paying their fine and then simply continuing with the same practices for which they were reported.

Unsurprisingly, potential whistleblowers are often held back by a sense of futility and a fear of retaliation. I would argue that a change in the law is necessary to ensure the safety of both workers s and society, but the current government is unlikely to provide these protections. In the meantime, we should not sit back and admit defeat. By negotiating with employers on their whistleblowing procedures, unions can protect not only whistleblowers, but their entire membership, and even the employer, in the case that wrongdoing is reported.

What should unions ask for?

If unions are approached to consult on whistleblowing procedures (or if the union requests to consult on existing procedures), I would advise negotiating for the following:

1) Union reps are inserted into the escalation procedure

Most procedures stipulate that workers should go first to their line manager, then to more senior staff, and only blow the whistle externally (for instance, to a regulator or MP), if the issue is not resolved in-house. I would advise union reps should be a second port of call regardless of whether or not the whistleblower is a union member. Providing more than one choice of union rep allows workers to select the person in whom they are most comfortable disclosing. The union's role is then to inform the employer of the reported issue and ensure it is properly investigated and addressed.

Benefits to the whistleblower:

They are able to pass the issue on to a trusted collective and their identity can normally remain confidential This should reduce the personal risk to their jobs, family and reputation that whistleblowing currently entails.

Benefits to the union and its members:

The union is kept informed of issues in the workplace that could cause problems to their members or to the entire business. If they are not mentioned in the procedure, unions could remain completely unaware of an issue until a whistleblower approaches an external party and the organisation is shut down (incurring massive job loss). Allowing non-members to speak to unions about their concerns also means issues affecting members that they are too afraid to disclose themselves are less likely to remain hidden and unresolved. By finding out about workplace issues in their earliest stages, unions are also better placed to work with employers to address problems before they spiral out of control and potentially put jobs, lives, and the wider population at risk.

Benefits to the employer:

As workers may be encouraged to speak out if their identity is kept confidential and they feel they have the union behind them, employers are more likely to be informed of wrongdoing in their organisations that it is in their interests to address as soon as possible.

2) Tests of Public Interest and good faith are not included

These tests are unnecessary and may well deter workers from disclosing information about wrongdoing so should be removed from existing procedures and not included in new ones.

Benefit to the whistleblower:

Without the fear that a tribunal will find they do not pass these 'tests', workers feel better protected and are more likely to make important disclosures.

Benefit to unions & employers:

Even if a disclosure transpires not to be in the public's interest, it is certainly in the interest of the employer and the union to know when issues are arising in an organisation. Indeed, being informed of wrongdoing is still in the interest of employers and unions even if the whistleblower has ulterior motives for speaking out. I would argue that the only occasion when a worker should be punished for disclosing information is if it can be shown that they knowingly disclosed false information.

3) The whistle may be blown for 'suspicion' of wrongdoing

Some procedures require that whistleblowers have reasonable grounds to believe that wrongdoing has occurred, while others encourage workers to speak out even if they are only suspicious. Allowing workers to disclose their concerns without placing on them the burden of proof is beneficial for everyone as it will lead to investigations that can root out problems that it is in everybody's interest to know about.

For the good of society

By standing up for the freedom of expression and becoming trustworthy confidantes for whistleblowers, unions can take an important role in the protection not only of workers but of human rights and society as a whole. Together we could aim to prevent disasters such as those at Piper Alpha and Mid-Staffordshire NHS Foundation Trust. By involving non-members through including them in whistleblowing procedures, we also encourage more workers to stand with us in the fight against organisational injustice, in whatever form it takes.

Click here to download Professor Lewis' free new e-book: Developments in Whistleblowing Research 2015