“Why didn’t anyone in the know say something about it?” That’s the natural reaction of the public when some shocking new scandal – financial wrongdoing, patient neglect, child abuse – comes to light. The question highlights the role of the whistleblower. He or she can play a vital role in ensuring that something is done about activity which is illegal or dangerous. But the price which the whistleblower pays may be high – ostracism by colleagues, victimisation by the employer, dismissal, informal blacklisting by other employers who fear taking on a “troublemaker”.
It is crucial that the public interest in encouraging the genuine whistleblower is fostered. The law can play an important role in promoting this aim. It ought to further the following objectives:
- to provide protection for the whistleblower
- to ensure that he or she is given an adequate remedy if subjected to dismissal or other detriment; and
- to increase the prospect that something will be done to eliminate the danger and/or rectify the wrongdoing which is the subject of the disclosure.
As things stand at present, our law addresses the second of those objectives – it does provide a remedy (through the employment tribunal system) for a whistleblower who is dismissed or otherwise victimised. In its recent Response to the Whistleblowing Call for Evidence , the UK government made it clear that “the whistleblowing framework is a remedy not a protection” – so objective 1 is not fulfilled by the law as it stands. It also conceded that “the framework is about addressing the workplace dispute that follows a disclosure rather than the malpractice reported by the disclosure”. So objective 3 is not part of our legal framework in any explicit way.
On the government’s own analysis, then, the current legal framework on whistleblowing is not fit for purpose. One would expect this frank confession to be followed by a pledge to take action. In particular, what can be done about dealing with the danger and/or wrongdoing which the whistleblower has exposed?
The Call for Evidence and the debate which surrounded it certainly came up with various proposals. Primarily these focused on the role of the regulator. In statutory terms, the various regulators for everything from financial wrongdoing to patient neglect are known as “prescribed persons”, and are listed in statutory instruments promulgated from time to time. The whistleblower is entitled to make disclosures to such “prescribed persons” if they are reasonably believed to be true, and the prescribed person is one who is stated by the statutory instrument to be relevant in relation to the matters disclosed.
It follows that these regulators (such as the Financial Conduct Authority, the Environment Agency, the Health and Safety Executive, the Children’s Commissioner, and the Care Quality Commission to name a few random examples) could play an incredibly important role in furthering objective 3 above.
Prominent among the proposals for reform were those put forward by a prestigious commission set up by the charity Public Concern at Work. It made a number of suggestions across the board. But particularly material to the role of the regulator were the following:
- regulators should require the organisations for which they are responsible to have effective whistleblowing arrangements in place
- they should review the licence of those organisations which do not have such arrangements
- a statutory Code of Practice for employers would provide the template for determining whether such arrangements were effective or not
- the regulators should provide feedback to whistleblowers, or explain why it is not possible to do so
- the current system of referral of employment tribunal claim forms should be strengthened to make referral mandatory unless the claimant opted out.
The only legislative response from the government has been that contained in clause 135 of the Small Business, Enterprise and Employment Bill 2014 . It gives the Secretary of State power make regulations to require a regulator to produce an annual report on whistleblowing. The regulations would set out the matters to be covered, but not in a form which would enable identification of either the whistleblower or their employer. They would set out requirements for publication e.g. by way of a report to the Secretary of State or on a website.
So far so good, and the proposed clause mirrors one of the suggestions emerging from the Public Concern at Work commission. Standing by itself, however, it is a totally inadequate response.
The crucial point is: what action will the regulators take in order to further the public interest? It is their role “to increase the prospect that something will be done to eliminate the danger and/or rectify the wrongdoing which is the subject of the disclosure”, as the government put it in its Response to the Call for Evidence. The proposals set out by the Public Concern at Work commission, or something very like them, are crucial if we are to hear the question “Why didn’t anyone in the know say something about it?” less frequently in future.