Whistleblowing: Government consults on a major shake-up

The Government has launched what it describes as the most comprehensive review of the UK's whistleblowing regime since the introduction of the Public Interest Disclosure Act 1998. The consultation runs until 8 January 2027 and can be found here.  It includes some eye-catching ideas for reform which would have major implications for employers. 

Who should be protected?

One key question in the consultation is whether whistleblowing protection should be extended to a wider group of individuals, including charity trustees, volunteers, job applicants and non-executive directors, as well as self-employed contractors. 

The position of NEDs and trustees is interesting, as a key part of their role is to provide independent scrutiny and challenge. They are well-placed to identify and act on unlawful behaviour, but as the law currently stands may not be protected against detrimental treatment. 

If whistleblower protection is expanded, employers will need to consider how existing whistleblowing procedures will need to be adapted to cover this wider group, as well as how to ensure that managers recognise protected disclosures from unexpected sources.

What counts as a protected disclosure?

The consultation also asks whether the types of wrongdoing that can form the basis of a protected disclosure should be expanded or clarified. 

While the existing categories are already broad, the consultation highlights two areas which might need to be specifically added:

• corruption-related concerns, including misuse of public funds and abuse of authority; and
• risks arising from AI technologies, including issues affecting public safety, national security and critical infrastructure. 

Disclosures to regulators

A less headline-grabbing proposal concerns disclosures made to prescribed persons, which includes regulators such as the FCA.

Currently, a worker reporting to a prescribed person must reasonably believe that the disclosure is in the public interest and relates to relevant wrongdoing, and also reasonably believe that the information disclosed is "substantially true". The Government is consulting on whether that additional requirement should be removed. 

Arguably the additional hurdle currently deters individuals from reporting concerns externally. However, reducing the threshold could encourage more speculative allegations and place greater burdens on regulators.

A duty to have whistleblowing procedures?

The proposal most likely to affect employers directly is the introduction of a statutory duty to maintain effective whistleblowing arrangements.

At present, outside certain regulated sectors, there is no legal requirement to have a whistleblowing procedure -  not having a procedure might not impress an Employment Tribunal in a whistleblowing claim, but it's not unlawful in itself. The consultation raises the possibility of a legal obligation on employers to maintain "appropriate and effective" procedures, communicate them to workers and follow up on disclosures.

The consultation suggests that any statutory duty would apply to all public sector employers, regardless of size and private sector employers, charities and not-for-profit organisations with 50 or more employees.  

Extending the interim relief deadline

The consultation asks whether the deadline for seeking interim relief in whistleblowing dismissal cases should be extended from seven days to fourteen days.

Interim relief remains one of the most powerful remedies in employment law. A successful applicant can be reinstated (or, in most cases, have their salary paid) until their case reaches a final hearing (with no obligation to repay if they lose).  Applications have soared in the last couple of years, driven partly by claimants using AI. 

Although the 7 day deadline is strict, the real challenge is that very few interim relief applications succeed (and research suggests that a sizeable percentage of those that do succeed do so because the respondent failed to show up to the hearing).   The legal threshold for granting interim relief is very high and applicants often fail to show that a protected disclosure caused the dismissal.   Given the low odds of success and the amount of judicial resource these applications take up, it's difficult to see much logic in merely making it easier for claimants to submit them in time.  

Rewards for whistleblowing on economic crime

The Government is consulting on a new Serious Fraud Office incentive scheme that could financially reward individuals whose information leads to successful enforcement action against companies for serious economic crime.  Rewards could be funded from financial penalties recovered as part of convictions or deferred prosecution agreements. 

What should employers do now? 

Although some of these proposals may never become law, it seems likely that there will be at least some tightening up of the whistleblowing framework.  Interested employers may want to respond to the consultation, which closes on 8 January 2027, and in the meantime should consider how effective their current policies are and the practical implications of extending them to a wider group of staff.