Whistleblowing

Whistleblowing: government-backed research questions effectiveness of current whistleblowing framework and suggests changes

The Department for Business and Trade has recently published an independent Review of the whistleblowing framework in Great Britain. This report follows extensive research, commissioned by the previous government and conducted by Grant Thornton UK LLP, into the effectiveness of the whistleblowing framework in Great Britain. 

The report outlines various changes the government should consider and aims to inform future government policy and reform of the whistleblowing framework. 

Key research findings

In summary, the report’s key findings include:

• Definitions are important and should be reformed: 

  • the key legal definitions ‘reasonable belief’, ‘worker’, ‘public interest’, ‘whistleblower’ and ‘protection’ are important determiners of the effectiveness of the whistleblowing framework, but they are often seen as subjective, vague, inconsistent and narrow and may require reform; and

  • some organisations voluntarily adopt a wider definition of whistleblowing than that provided for in legislation, but this can cause confusion and misconceptions as to whether the individual whistleblower has legal protection.

• Internal disclosure routes/organisational response: 

  • organisational capabilities and capacity can act as a barrier to internal disclosure;

  • organisations can respond effectively to concerns raised, depending on their resources or appetite to do so;

  • issues can arise where organisations do not respond appropriately to reports (e.g., do not investigate);

  • many factors contribute to the effectiveness of internal reporting frameworks – including: accessibility, trust, confidentiality, senior management commitment, and independence / objectivity; 

  • effective segregation between those investigating reports and the organisation’s management is seen as essential for organisations to provide effective whistleblower protection; and

  • many employers were aware of whistleblowing guidance and processes, whilst many employees are not aware and those that are aware may find the guidance unhelpful or confusing.

• External disclosure routes/prescribed person response: 

  • there are identifiable gaps in the sector coverage of the prescribed person regime; and

  • for whistleblowers, difficulty identifying the correct prescribed person to contact can lead to confusion, uncertainty, delays, the potential loss of whistleblower protections; and

  • some whistleblowers expressed surprise that prescribed persons do not have a remit to respond to allegations of detriment and cannot protect them from detriment or victimisation. 

• Whistleblower protections and redress via employment tribunals: 

  • although the legal framework provides qualifying whistleblowers with legal protection, individual whistleblowers may not be aware of or understand this protection;

  • workplace culture and perceived safety have been identified as determining factors in the decision to report a concern;

  • researchers found that some individuals questioned the effectiveness of the whistleblower protections in practice; 

  • many whistleblowers reported being victimised after blowing the whistle and some indicated that they would not do so again as a result of their negative experiences; and

  • many participants criticised the legal redress process as not going far enough, not being balanced and fair, not meeting participant expectations and pointed to significant barriers to justice.  

• Cultural change:

  • although there have been more whistleblowing reports in recent years and more organisations are putting whistleblowing frameworks in place, whistleblowing can still be subject to stigma and whistleblowers may not be offered adequate support;

  • some sectors have regulatory requirements, which include having adequate policies and procedures for whistleblowing, but this does not necessarily mean the policy/procedures are effective at changing the culture; and

  • there are still positive and negative stereotypes associated with blowing the whistle, although the prevalence of those stereotypes may be decreasing.

Suggestions for change

The report recommends the reform or overhaul of the whistleblowing legislation and makes various suggestions for change, including: 

• Definitions:

  • extend the existing ‘worker’ definition to protect volunteers, job applicants, non-executive directors, contractors, and former workers

  • replace the ‘employer’ definition with a ‘relevant person’ definition

  • create a statutory definition of a ‘whistleblower’

  • create a definition or ‘protection’

  • expand and clarify the ‘qualifying disclosure’ definition

  • address the extension of the ‘reasonable belief’ test and apparent need to raise perfect concerns

• Public interest:

  • remove the ‘public interest’ test

  • amend the ‘public interest concern’ definition

  • create a statutory code of practice in relation to ‘public interest’

• Whistleblower incentives:

  • consider the implementation of a United States style reward system for whistleblowers

• Protections:

  • remove whistleblowing from an employment law context

  • create national standards on providing proactive protection and responding to concerns and consequences for non-compliance with new standards

  • require board or most senior level accountability for effectiveness of frameworks

  • independent oversight of response and management of individuals

  • recognise effective frameworks (of prescribed persons, organisations and individuals)

• Prescribed persons: 

  • improve the guidance on prescribed persons’ responsibilities for responding to concerns and set standards across all prescribed persons

  • create requirements for prescribed persons to investigate concerns in line with proven best practice guidance

  • create a separate investigative body – generally or regarding allegations of retaliation

• Legal redress: 

  • establish an oversight body or adjudicator for whistleblowing cases

  • create a central body for whistleblowing

  • take whistleblowing cases outside of the employment tribunal process 

  • introduce full redress and expedited remedies (such as interim relief) for whistleblowers

  • amend time limits associated with interim relief and filing an employment tribunal claim to prevent premature adversarial situations

  • provide additional financial support to whistleblowers through legal aid statutory advocates and/or cap respondent’s legal fees

  • reverse the burden of proof within the proceedings and/or review

  • ban non-disclosure agreements as part of settlements

  • further training or specialist judges for whistleblowing claims

  • employment tribunals to be heard by jurors rather than solely judges

  • employment tribunal claimants to automatically be awarded costs if they win their case

  • make civil or criminal courts responsible for enforcement

  • introduce public fines for organisations that fail to comply with employment tribunal judgments

  • expand the remedies and sanctions available for whistleblowers

It remains to be seen if the government will proceed with suggested wider reforms of the whistleblowing framework, although there are some minor reforms within the Employment Rights Bill, which is currently progressing through parliament. We will report any developments.