Statutory protection for whistleblowers in the UK is not a new concept – the Public Interest Disclosure Act 1998 (the Act) came into force as long ago as 1999. The basic premise remains the same – provision of a framework under which employees feel safe enough to raise concerns about serious wrongdoing within an organisation.
More than 20 years later, employers need to be live to the fact that whistleblower protection applies as much to concerns close to the heart of workers of the twenty twenties as it did in the nineties and there is scope for it to be used to drive workplace cultural change on issues such as carbon reduction.
Having a statutory framework under which employees feel safe enough to raise concerns about serious wrongdoing within an organisation is clearly a good thing, for employees, employers and the wider public. The Act does this by prohibiting employers from dismissing workers or subjecting them to the detriment because they have blown the whistle.
Many employers recognise this and embrace it, through the development of robust whistleblowing processes and providing access to a confidential helpline to report any such complaints.
On the flip side the UK legislation in this area is relatively complex. This means it can be difficult to navigate in practice and employers can be wary of it in a litigation context. Also, from the litigation perspective, there is the additional challenge that if a claimant is successful with a whistleblowing claim it lifts any cap off compensation. This means it can be an attractive tool for claimants seeking to put pressure on employers.
Add to that the fact that it is a high profile topic, often making the headlines, spanning all sectors, from sport to financial services. It is no wonder that whistleblowing is on the rise.
Over 20 years ago, the Act was introduced in the UK against a backdrop of scandals; the Zeebrugge ferry disaster, the rail crash at Clapham Junction, Piper Alpha and various financial scandals. In these cases staff had been aware of the risk of serious physical or financial harm but had been too frightened to speak out or were ignored when they did so.
In 2021, the nature of the scandals forming the backdrop to whistleblowing complaints are very different. Covid-19 has provided a new dimension. To be protected under the Act whistleblowers must make a qualifying disclosure that is in the public interest about a type of wrongdoing that falls within one of six categories, one being health and safety. Protect, the whistleblowing charity, explained in a report last year that they were “inundated” with Covid-19 health and safety whistleblowing concerns regarding furlough fraud, risk to public safety around lack of social distancing and PPE in the workplace. We have yet to see the full extent of Covid related claims be reported in the tribunal because of court backlogs, and we expect more as the cases are heard.
Whistleblowing about environmental wrongdoing may also prove to be an area of future growth.
With more businesses adopting climate change policies, the issue of how a business behaves in relation to the environment is elevated in the public consciousness in a way that it never has been before. It is not difficult to envisage more employees raising concerns about wrongdoing related to environmental damage.
The few complaints to date have concerned issues like waste recycling and asbestos. Could we see more employees blowing the whistle if companies conceal the truth behind their net zero commitments? Certainly Protect are calling on UK workers to speak out if companies are greenwashing.
For companies only paying only lip service to climate issues, its another reason to take environmental pledges seriously.
Catriona Aldridge is a partner at international law firm CMS
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