Will we see widescale reform of the whistleblowing regime?

Whistleblowing plays a vital role in maintaining transparency, accountability and ethical practices in the workplace.

Whistleblower protections were introduced into the Employment Rights Act 1996 through the Public Interest Disclosure Act 1998 (the Act). Whilst the Act was pioneering for its time, its limitations have become apparent in recent years, prompting calls for reform to strengthen the UK’s whistleblowing regime.

The effectiveness of the Act

The Act aims to safeguard individuals who disclose information about wrongdoing in the workplace, provided the disclosure is in the public interest. It protects workers from dismissal or detriment resulting from their whistleblowing.

Despite these provisions, the effectiveness of the Act has been criticised, with several shortcomings highlighted:

• It only applies to workers, limiting the scope of protection for individuals reporting wrongdoing.
• Whistleblowers must meet certain conditions to receive protection for making external disclosures, such as proving they acted reasonably and there was no other alternative.
• It provides workers with remedies after retaliation for whistleblowing has occurred, rather than preventing retaliation in the first place, often requiring a whistleblower who has suffered retaliation to navigate employment tribunal proceedings.
• Whistleblowers often face significant emotional and financial stress, and there is limited provision for support during or after the disclosure process.
• Many organisations lack a culture of openness and transparency, deterring employees from speaking out.

Proposed reform

There has been growing momentum for reform of the UK’s whistleblowing regime from advocacy groups, legal professionals and whistleblowers themselves.

The Labour Party’s manifesto promised to ‘strengthen the protections available’ for whistleblowers in the workplace.

Under the Employment Rights Bill 2024-25 (‘the Bill’), it will be a ‘protected disclosure’ for a worker to report that sexual harassment has occurred, is occurring, or is likely to occur. Workers who make a protected disclosure relating to sexual harassment will be protected from detriment and, where they are an employee, their dismissal will be automatically unfair if their protected disclosure is the reason, or principle reason, for the dismissal. In such cases, there will be no qualifying minimum period of service, and no upper limit on compensation.

During a debate about whistleblowing reform in the House of Commons on 22 October 2024, the government affirmed its plan to introduce a ‘duty of candour’ for public authorities, which it hopes will give whistleblowers in the public sector increased confidence to raise concerns and improve transparency and accountability in the public sector.

The Government also said that it is considering a number of ideas to ensure that whistleblowers ‘have somewhere they can go and have their complaints taken seriously’. This would include looking at the role and remit of a potential new body/ independent office of the whistleblower.

Justin Madders MP, Parliamentary Under-Secretary of State for Business and Trade, acknowledged shortcomings in the existing whistleblowing legislation and indicated that this is something the Government wanted to look at ‘if we get around to a review of the legislation’.

Comment

At present, the Government’s proposals for reform of the whistleblowing regime are not as widespread as some had hoped, although introducing protection following a report of sexual harassment does represent a shift away from the current requirement for the disclosure to be in the public interest.

However, with the Government hoping to look at a widescale review of the whistleblowing legislation, it is possible that we will see further reform during the Government’s current tenure.

Employers are advised to conduct a review of their current whistleblowing policies and their procedures for handling whistleblowing complaints.

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