Are whistleblowing laws fit for purpose?


The Post Office scandal continues to make headlines following ITV's broadcast of Mr Bates v The Post Office and the ongoing inquiry. The scandal saw more than 700 Post Office branch managers wrongly convicted after software errors with the Horizon system they used made it look like money was missing from branches. The scandal, once again, highlighted the deficiencies in the protection of whistleblowers under The Public Interest Disclosure Act 1998 ("PIDA"), the UK's whistleblowing legislation. 

The deficiencies 

  1. Some groups of people have no whistleblowing protection. Under PIDA, employees and 'workers' can bring a claim for detriment or dismissal as a result of having raised a protected disclosure. Whilst PIDA contains a wider definition of worker than other areas of employment legislation, certain groups of people (who may discover wrongdoing in the workplace) are excluded, including self-employed contractors (which Post Office branch managers are treated as under UK employment law), volunteers and trainees.   If these individuals blow the whistle, they have little legal protection against reprisals.
  2. No obligation on employers to have systems to receive whistleblowing disclosures, to investigate concerns, or to provide feedback. A whistleblower at Fujitsu (the company which built and maintained Horizon) helped to uncover the scandal by disclosing that accounts on the Horizon system could be altered by Fujitsu staff without sub-postmasters being aware. If anyone at Fujitsu had raised this internally, and had Fujitsu been obliged to investigate, the issues could potentially have been rectified and it is possible that some wrongful convictions could have been avoided.
  3. PIDA only provides an ‘after the event’ remedy (usually compensation) if a whistleblower is victimised for raising concerns. This often discourages individuals who have identified wrongdoing or concerns from disclosing them. A positive obligation on employers to take reasonable steps to prevent whistleblowers being subjected to detrimental treatment (which, some advocate, a regulator or new whistleblowing commissioner should enforce) would provide protection for whistleblowers without requiring them to bring a claim.
  4. The burden of proof is on the whistleblower. In detriment claims, whistleblowers must prove they suffered a detriment 'on the ground that' they made a protected disclosure. In unfair dismissal cases, the bar is even higher as they have to show the protected disclosure was the 'main or principal reason' for the dismissal. Employers may proffer an alternative reason for the dismissal and, for example, include the dismissal in a redundancy exercise which also affects other people. Many advocate for the reversing of the burden of proof, requiring the employer to prove that they have not dismissed or subjected the worker to  a detriment by reason of the protected disclosure. 
  5. There is no requirement to provide support measures for whistleblowers. 
  6. There is currently a backlog of employment tribunal cases which means claims aren't being resolved swiftly.
  7. Interim relief provisions are rarely used and are difficult to win. These enable an employee who has been dismissed to apply for an order that, until the hearing, they be given their job back or another with the same employer or, failing that, that they will continue to be paid their salary.  An employee must submit their claim within 7 days of the date of dismissal and, to be successful, has to prove that they are likely to win their whistleblowing case, at a point when the employer will not have been obliged to disclose relevant documents.

The UK was one of the first countries in the world to develop a whistleblowing framework but it is now outdated. By contrast, the EU Whistleblowing Directive (which doesn't apply to UK organisations unless they have branches in EU countries) addresses many of the issues identified above. These are some of the key areas that the Government's current review of the UK's whistleblowing framework will focus on and this may lead to reform of the PIDA legislation.  The outcome is eagerly awaited. 

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