24 May 2017

Dave Lewis, Professor of Employment Law, Middlesex University

Dave Lewis, Professor Employment Law at Middlesex University and a whistleblowing expert looks at what is needed to strengthen the rights of whistleblowers and therefore the safety of workers and public alike. In our Manifesto for Labour Law - the Institute of Employment Rights' recommendations for reform - we argue that individual rights and protections like those covering whistleblowers are best strengthened through sectoral collective agreements, as well as at a statutory level. Our proposal that sectoral collective bargaining should be restored across the UK has been taken up by the Labour Party in their 2017 Manifesto.

The protection of whistleblowers was not high on the political agenda before the election was called so it is unsurprising that it is not a major campaigning issue! The manifestos of the Conservatives and Greens do not mention whistleblowing whereas Labour and the Lib Dems state that they will support health service and social care staff who speak up.

However, experience of almost 18 years of the Public Interest Disclosure Act (PIDA) being in force suggests that the UK needs to do far more to keep pace with international best practice.

The view of politicians that whistleblowers in a particular industry or sector should be better protected than others seems unfair and inconsistent with the human right to free speech afforded to all citizens. Indeed, there is a strong argument that the security and intelligence services should not be excluded from legislation, although special provisions might be made available to those working in such areas. More generally, if raising concerns about wrongdoing is seen as a public good (because it promotes economic efficiency and good governance as well as potentially saving lives etc), why does Parliament not require all employers to introduce and maintain whistleblowing procedures that are fit for purpose?

Today whistleblowers are only protected if they disclose information that they reasonably believe to be in the public interest. However, workers will only know whether or not they have satisfied this test if they go to an employment tribunal for a remedy following victimisation. Tribunal fees are a clear deterrent to the enforcement of rights and, quite rightly, the Labour Party proposes to remove them as part of its campaign to provide access to justice. Whistleblowers also need advice and representation and will naturally turn to their trade union for this. Yet a disclosure to a union is only statutorily protected if it is for the purpose of receiving legal advice and lay representatives are not empowered to offer this. Making union officials designated recipients of concerns would do much to improve the confidence of both actual and putative whistleblowers. Indeed, most employers would prefer disclosures of information to be made to internal union staff than externally to a regulator or the media.

At present employers can discriminate against whistleblowers so long as they are prepared to pay compensation if they are sued. If politicians want us to believe that they are serious about promoting the disclosure of wrongdoing and protecting whistleblowers they could make retaliation against whistleblowers a criminal offence. This might be regarded by some as draconian but it is not uncommon in other countries. Although it is unlikely to be invoked very often, such a law would send out a clear message to society.

Finally, there is currently no specialist agency charged with promoting whistleblowing or protecting whistleblowers. The advantage of establishing such an agency would be that it could help employers devise appropriate policies and procedures and could advise and represent workers in relation to actual or potential disclosures of information. Inevitably, the creation of another public body may be regarded as a financial burden in the short term but in the long run it may prove beneficial to the UK economy.