The whistleblowing interest group Public Concern at Work (PCaW) last year set up an independent Commission to review all aspects of whistleblowing including current legal and governance arrangements, best practice, and societal attitudes. In November it published a report in which in which it made a number of recommendations for change. The report helpfully highlights key issues in this topical area.
Recommendations - Overview
The headline recommendation was that it would be undesirable to legally require employers to have in place arrangements facilitating whistleblowing, but further steps should be taken to ensure that employers are more likely to provide effective arrangements for whistleblowing. Those steps should include amendments to the Employment Rights Act 1996 (ERA) and the establishment of a code of practice, required to be taken into account by courts or tribunals when considering proceedings involving whistleblowing.
Further recommended steps include reviewing the licence or registration of organisations which fail to have in place effective arrangements for whistleblowing, ensuring regulators have a clear procedure for dealing with whistleblowers who approach them (including providing feedback), and for regulators to include details of whistleblowing in their annual reports, for example the number and type of concerns, and the number of enforcement actions that have been triggered or contributed to by whistleblowers.
The Commission did not recommend however the introduction of financial rewards or incentives for whistleblowers, arguing that this may undermine the moral stance of a genuine whistleblower, could lead to false or delayed reporting, and result in the negative portrayal of whistleblowers.
Code of Practice
The Commission proposes a code of practice should set out principles enabling workers without fear of adverse consequences to raise concerns about a danger, risk, malpractice or wrongdoing in the workplace that affects others. The report included a draft code of practice intended to provide practical guidance to employers, workers and their representatives, setting out recommendations for raising, handling, training and reviewing whistleblowing in the workplace. These arrangements should be proportionate, according to the size of the organisation and the nature of the risks faced.
The Commission does not believe that a code of practice should require workers to blow the whistle. It contends that an 'overarching duty to blow the whistle' could cause more problems than it solves, for example by encouraging over-reporting, and may result in organisations focusing on those who did not speak up, rather than on the concern itself.
Disclosure of wrongdoing is protected if it is made to an employer; a regulator, where the qualifying disclosure is made to a 'prescribed person' (usually the regulatory body), disclosure to the wider public, so long as this disclosure is not for the personal gain of the whistleblower, and disclosure in the course of obtaining legal advice.
1) Categories of Wrongdoing
The Commission recommends that the current categories of wrongdoing should be expanded, and should include a non-exhaustive list of examples. In addition to criminal offences, failure to comply with legal obligations, miscarriages of justice, dangers to health or safety, dangers to the environment, and deliberate concealment of any of the above categories, the Commission recommends the inclusion of 'gross waste or mismanagement of funds', and 'serious misuse or abuse of authority' as two further categories of wrongdoing which, if reported, would constitute a 'qualifying disclosure'.
2) Public Interest Test
The Commission anticipates that the requirement added in June last year that a qualifying disclosure is one which, in the reasonable belief of the worker making the disclosure, is made in the 'public interest' will lead to uncertainty, and result in an increase in litigation. Therefore, it recommends that it would be helpful for guidance and examples to be provided as to what would be regarded as being 'in the public interest'.
3) Protection of Workers
The Commission recommends that a broader, more flexible definition of 'worker' is used, so that it also includes:-
a) Job applicants
b) Student nurses, doctors, healthcare professionals and social workers
c) General Practitioners in health service, regardless of their contractual arrangements
d) Volunteers and interns
e) Non-executive directors
f) Public appointments
g) Partners (including LLP partners)
h) Priests and ministers of religion
i) Foster carers
j) All categories of workers listed in the Equality Act 2010.
The Commission recommends that it would be in the public interest to extend protection to overseas workers who raise concerns about their UK employers and subsidiaries.
The Commission suggests that if a worker is wrongly identified as a whistleblower, they should be protected against detriment or unfair dismissal on the grounds that the worker made, or is thought to have made a protected disclosure.
4) Prescribed persons
The Commission recommends that the process for describing the types of organisations listed as "prescribed persons" to whom individuals can raise concerns under s.43F ERA should be simplified, and that listing prescribed functions rather than particular organisations, for example, may be preferable.
5) Causation Test
The Commission recommends that the causation tests for detriment and dismissal should be the same so that an employee who is dismissed shall be regarded as unfairly dismissed if the dismissal was on the grounds that the worker made, or is thought to have made, a protected disclosure.
6) Interim Relief
The ERA allows a worker to apply for interim relief within 7 days of dismissal and if successful their employment continues or is deemed to continue until full hearing. The Commission recommends that this provision should also apply to detriment claims and that the time limit for bringing proceedings should be extended from 7 to 21 days.
7) Gagging Clauses
Section 43J ERA provides that any provision in an agreement to which s.43 ERA applies is void in so far as it purports to preclude the worker from making a protected disclosure. The Commission recommends that the anti-gagging provision is amended to ensure that settlement agreements do not leave staff feeling as though they are unable to report wrongdoing, or reward the failure either of an employee or an organisation. They suggest the alternative wording: "No agreement made before, during, or after employment, between a worker and an employer may preclude a worker from making a protected disclosure". The Commission's position on this is very close to that of the Public Accounts Committee which has just published its report on confidentiality clauses and special severance payments, recommending that appropriate safeguards are put in place to protect employees who raise matters of public interest.
8) Open register of protected disclosure claims
The Commission invites the government to consider whether it would be in the public interest to have a register of claims available to the public or at least available for research purposes. The Commission did not make a recommendation on this point, requesting that an open register may give employers material to target or blacklist those raising concerns.
9) Mandatory regulatory referral
Currently whistleblowing claimants can choose whether or not their claim form is sent to a regulator. The Commission recommends however that the referral of such claims to prescribed regulators, (such as the GMC) should be mandatory but that individuals should be able to opt out of this referral process.
In addition, the Commission recommends that research is undertaken to assess whether there needs to be a central system in the form of an ombudsman for the reporting of concerns, and whether there could be a state sponsored agency which could provide training, public awareness and public education on whistleblowing.
Clearly, few of the Commission's recommendations are likely to be taken up in legislation any time soon, but they very helpfully highlight those key areas relevant to all organisations and which should be considered when preparing policies for the workforce to minimise corporate risk from potential disclosures whilst facilitating the raising of genuine concerns.