A quick search in the App store for 'whistleblowing reporting' brings up dozens of choices - facilitating anonymous whistleblowing is clearly big business. These Apps are also a good indicator of how the world has moved on since 1998 when legislation, protecting workers who blew the whistle on their employers from reprisals, was first introduced in the UK. Yes - 1998 back when Cher and B'Witched were topping the charts - pre smart phones, pre Me Too and pre the ‘speak-up’ culture.
With technology developing at pace, the law is often accused of failing to keep up with the times so the government's announcement this week that the newly named Department for Business and Trade will be conducting a review of the whistleblowing framework is welcome. This particular legislation is not only complex in itself but has also given rise to a veritable treasure trove of case law in its wake - good news for lawyers perhaps - less good for everybody else. Equally, in recent years, the EU had passed a new Whistleblowing Directive and the US has expanded its available protections so the UK will be keen not to fall behind.
The government review has identified 5 core areas for scrutiny which include how the whistleblowing framework has facilitated disclosures and how accessible information about whistleblowing is for workers.
Interestingly the review will also be considering 'the wider benefits and impacts of the whistleblowing framework, on employers...'. With ESG and responsible business principles now at the forefront of many employers' minds, the benefits to an employer of having meaningful channels in place to allow workers to report wrongdoing and cover-ups, free from the fear of reprisals, are clear. Fostering a culture where responsible corporate behaviour is encouraged and respected can only be a good thing.
However, it will be interesting to see what comes back from the review in terms of the impact of the current whistleblowing framework on employers. Most employers recognise the importance of encouraging a ‘speak up’ culture to discourage wide-scale bad practice and there are plenty who would argue that cover-ups are still too frequent. The principle of robust protection for whistleblowers is, therefore, a sound one. However in trying to offer suitable protection, the scope for when a disclosure may be deemed as being 'in the public interest' (and therefore potentially capable of protection under this law) is undoubtedly wide. Employers who have been hit with whistleblowing claims for seemingly private ‘employer/ employee’ complaints may therefore report that the impact of the legislation can be disproportionate to the matter in hand – not least as whistleblowing claims can be expensive and time-consuming to defend.
Originally introduced after a series of high-profile incidents and disasters where many of the employees involved were aware of poor standards and practices but were afraid to speak up, one might be forgiven for assuming that this undoubtedly important legislation would focus on protecting those who made disclosures in that context ie where poor practices presented a large-scale risk. However a look at the case law may surprise as the courts’ interpretation of when a worker or employee may reasonably believe their disclosure to be ‘in the public interest’ is broad and arguably may not correspond with what the man in the street might think would justify protection from this particular source of law.
Tightened up by a change in 2013, for a disclosure to be protected, the employee making the disclosure must have a ‘reasonable belief’ that their disclosure is made in the public interest, ostensibly to exclude private employment disputes from the scope of the protection. However the test is a subjective one and a review of the case law would suggest that objective – to exclude private disputes - has not really been fully met.
A look at the employment tribunal and court decisions reveal that a complaint that an employer had misstated its costs leading to a negative impact on the earnings of 100 or so members of senior staff was found to meet the 'public interest’ test. An alleged unfair distribution of overtime by an employer, affecting four employees, was also found to satisfy the test. In raising a matter relating to her own health and safety, namely that she had to work in cramped conditions, an employee was also found to have met the public interest threshold in respect of employees generally.
Do employees need a mechanism to allow them to raise important issues like these with their employers, free from fear? Certainly - but whether the public interest disclosure legislation is the right vehicle for doing so is, to my mind, more questionable.
That said it is undoubtedly difficult to know where to draw the line as to when something should be said to be ‘in the public interest’. There’s a balance to be struck and it’s a challenge to get right. Although the case law gives guidance, interestingly, there is no definition of ‘in the public interest’ within the whistleblowing legislation nor in any government guidance or code of practice.
Parameters around minimum numbers of people potentially affected are unlikely to be effective – one of the cases I mention above involved over 100 employees. Equally a restriction that a matter can only be in the public interest if it affects those outside of the organisation would also be undesirable – that risks exempting the employer who knowingly plays fast and loose with its own employees.
The review offers up the opportunity to relook at how we might define ‘in the public interest’ and it will be interesting to see what conclusions are drawn. The government’s terms of reference state that the review will ‘examine the effectiveness of the framework’ in meeting its original objectives (which are listed and which make no reference to any ‘public interest’ requirement), providing evidence to inform the government about policy choices to ‘develop and improve’ the whistleblowing framework. Quite what this means in terms of the end result remains to be seen but if you’re in the business of developing whistleblowing Apps, there’s probably no need to down tools just yet.
The review is expected to conclude by autumn 2023.
The government has launched a review of the whistleblowing framework to ensure it protects workers who raise concerns effectively.