Analysis / Whistleblowing: should there be more legal protection?

Whistleblowing: should there be more legal protection?

They are a check on wrongdoing and a powerful, sometimes untapped force in the fight against corporate fraud. But some believe that more must be done to protect and encourage whistleblowers.

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With recent events bringing them back into the spotlight, discussions have begun around whether whistleblowers are being adequately protected. And while some measures have been put into place to make whistleblowing easier, there are calls from certain quarters for further action.

Edward Snowden’s disclosures about the NSA may now be famous, but scandals closer to home have led to serious questions around the ability of employees to safely and simply expose problems in the workplace.

One high-profile case, the probe into the running of the Mid Staffordshire NHS Trust which was investigated for its high mortality rates and later shut down, originally stemmed from the efforts of a whistleblower.

Julie Bailey, pictured above in the centre, whose mother died in Staffordshire General Hospital in 2007, helped expose the crisis when she set up a campaign, Cure the NHS, to encourage others to come forward about any failings in the system.

Controversy around this has led to a renewed look at legislation covering the practice of whistleblowing and a number of changes aimed at making it easier for this to happen. Amendments introduced to the law last year meant that workers would be protected in an employment tribunal if they believed a disclosure was “in the public interest”.

And a previous requirement that workers must make a disclosure “in good faith” and not, for example, in order to benefit themselves or get revenge on an unpopular boss, was scrapped. Another change meant companies could be held responsible if an employee were badly treated by co-workers after blowing the whistle.

Other steps have been taken since then. The Whistleblowing Commission, a group set up by the charity Public Concern at Work (PCAW), made a series of recommendations last year. It called for the adoption of a code of practice, set down in law, outlining whistleblowing arrangements, as well as the strengthening of anti-gagging provisions and specialist training for employee tribunal members on how to handle whistleblowing cases. And after a consultation on the subject, the government recently announced a number of new measures, including the improvement of guidance around whistleblowing.

But some believe such disclosures could be taken more seriously – both in the law and in the workplace. Shonali Routray, legal director at the PCAW, says that unexposed problems can have huge, and even deadly, consequences later on – as they did in a ferry disaster that killed 193 people.

“It’s important that your staff can raise issues early and effectively so they can prevent disasters,” she says. “You have had incidents like the Zeebrugge disaster in 1987, where the ferry left the port and sank in three minutes.

“They found that on five occasions, staff had raised concerns but the communication was bad. You also have things like the Libor scandal or Wonga sending out fake letters.”

Though the Whistleblowing Commission’s code of practice has not been enshrined in law, PCAW is now running a campaign, the First 100, to get companies to adopt the code voluntarily.

But she says that companies in general could take whistleblowers more seriously. “There’s no organisation, even with five employees, that doesn’t have problems with their operations,” she says. “In big companies, more questions have to be asked at board level about the arrangements and whether they are working. Non-executives have an important role in this and they need to be asking these questions.

“We also need to make the process work. We have lots of amazing managers who are really good at doing things, but often the whistleblowing will happen on a Monday morning or Friday afternoon – how do we deal with that?”

Beyond the processes, others believe the law surrounding whistleblowing is hard to perfect. Fraser Younson, a partner at the law firm Squire Patton Boggs, says it can be difficult to achieve clarity and a balance between protecting whistleblowers and preventing abuse of the system.

“What the government did after Mid Staffordshire was to take away the requirement that it must be in good faith,” he says. “They put in a line about the public interest, but that hasn’t been defined. What’s in the public interest? The government also decided not to have a reward system like they do in the US, but (financial watchdog) the FCA are still looking at it.”

He says that whistleblowing could make a difference, but would be unlikely to eradicate fraud on its own. “Fraud will always happen,” he says. “There will always be people who get involved in fraud. That has been mankind’s nature and those people are at risk of being whistleblown on.

“I don’t think the changes in the law will stop people doing fraudulent stuff because there is no incentive to blow the whistle. What the changes do is make it legally easier for people to blow the whistle. But if you want to stay in your job, you have got to be quite a brave person to say ‘My employer has done terrible things’. If you are a 60-year-old about to retire you may not mind doing it. But if you are in your 20s, or have kids or a mortgage to pay, that’s different.”

He also warns that some existing law could be impractical for firms – particularly the requirement that whistleblowers are protected from detrimental treatment at the hands of their colleagues and others. “How does an employer manage that?” he asks. “If you have grassed on your co-workers and you think you can still be friends, I think that’s an area the government hasn’t thought through.”

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