In the UK, whistle-blowers are afforded protections under both statute and common law. In 1999, the Public Interest Disclosure Act (PIDA) came into force, adding provisions into the Employment Rights Act 1996 that protected whistle-blowers against dismissal and discrimination.
The act of whistle-blowing involves the making of a ”protected disclosure.” This is defined as any disclosure of information that, in the reasonable belief of the worker making the disclosure, tends to show one or more of a given set of factors, including, for example, that a criminal offense has been committed or a miscarriage of justice has occurred. For the whistle-blower to be protected, the disclosure must be made to one of a non-exhaustive list of people, which includes the whistle-blower’s employer, the person responsible for the relevant failure, government ministers and legal advisers.
PIDA protects both employees and workers who make such protected disclosures in the public interest. The meaning of ”public interest” has been widely debated, and, in the case of Chesterton Global Ltd. v. Anor & Nurmohamed in 2017, was described as being a low-threshold criterion that may include groups of staff members rather than the general public exclusively. The protection extended to whistle-blowers by PIDA aims to prevent them from suffering detrimental actions or being dismissed as a result of making a protected disclosure.
Whistle-blowers may request anonymity when making a protected disclosure, but this may mean that the investigation cannot be taken further if sufficient information is not provided. In most cases, the recipient of the information must, on request, make every effort to protect the identity of the whistle-blower, their disclosure to the press will generally forfeit their right to anonymity under PIDA. This anonymity is key in protecting the whistle-blower from any backlash related to making a protected disclosure, which may include unfair treatment in the workplace or unfair dismissal.
In theory, whistle-blowers are afforded significant protections under the law. The UK government aims to encourage accurate and pertinent whistle-blowing: the Financial Conduct Authority considered offering US-style incentives to whistle- blowers but eventually decided not to do so, judging that active encouragement of whistle-blowing by financial means would entail the risk of an increase in false or trivial claims.
If a whistle-blower suffers a detriment in their employment, they have a potential claim for detriment; if they are dismissed due to their whistle-blowing, they may bring a claim for unfair dismissal. However, if the whistle-blower is a worker rather than an employee, a claim for detriment is the only option available because the unfair dismissal is a claim that is only available to employees. As decided in the case of Kuzel v. Roche Product Ltd. in 2008, where dismissal was a result of the employee having made a protected disclosure, that dismissal is automatically unfair, and it is for the employer to prove that there was a fair reason for the dismissal.
In addition, claims for hurt feelings and for loss of earnings due to damage in reputation and a subsequent inability to find work in the same field at a similar level have often been successful, with damages, as awarded in the 2009 case of Watkinson v. Royal Cornwall Hospitals NHS Trust, potentially reaching over £1m.
However, the law provides a minimum protection only, and one that should be augmented and fortified with best practice policies and procedures. Indeed, there is no positive obligation to encourage or promote whistle-blowing provided by statute. The only protections provided are those laid out above, which amount to more in the way of remedies than measures to facilitate improvements to the whistle-blowing process. Such measures must therefore be implemented before the fact by the conscientious employer.
Indeed, there are myriad reasons beyond the ethical for an employer to implement a whistle-blowing policy. These include, but are not limited to, preventing external disclosures, minimizing the risk of litigation, and avoiding criminal liabilities linked to the facilitation of illegal activity. All employers should therefore, as a matter of best practice, have a whistle-blowing policy that is separate from the company grievance policy, setting out the legal protections available to whistle-blowers and providing for a comprehensive and supportive whistle-blowing procedure. It will also be of utmost importance that the policy encompasses data protection issues. As a matter of good practice, the policy should be developed in consultation with staff and any relevant trade unions.
It is likely that the future of whistle-blowing policy in the UK will be shaped by an increased awareness of the emotional toll of blowing the whistle on those who do so, as well as by developments in technology that will facilitate reporting, investigations, and record-keeping. Also of note will be the interaction of whistle- blowing legislation and the General Data Protection Regulation.
Country-by-country and EU whistle-blowing rules need to be taken into account in setting the best practices and policies in this growing area of risk, including what an employer must do when faced with a whistle-blower claim, such as whether an investigation is required, protections of the employee who complained of company practices and litigation issues.
Best practice requires companies to take action in advance by creating a hotline and training its employees in ethical behavior.