How effective is the law at protecting whistleblowers?

Research commissioned by the Department for Business and Trade (DBT), ‘Understanding the effectiveness of the Whistleblowing Framework in Great Britain’, examines whether our existing laws are fit for purpose. 

Here we explore the research findings and whether this is likely to lead to change. 

The Law

The Public Interest Disclosure Act 1998 (PIDA), which amended the Employment Rights Act 1996, introduced legal protection to workers who made a protected disclosure. A protected disclosure occurs when a worker discloses information to a particular person - usually their employer - which, in their reasonable belief, is made in the public interest and shows one or more of the following types of wrongdoing: criminal offence, breach of any legal obligation, miscarriage of justice, danger to the health and safety of any individual, damage to the environment, or the deliberate concealing of information about any of these. 

The PIDA was designed to provide a route for workers to blow the whistle, protect them from being badly treated as a result and providing legal redress if they were. 

It also had a wider societal aim - to prevent avoidable tragedies or scandals. 

Research findings

The research examined key terms including “reasonable belief”, “worker”, “public interest”, “whistleblower” and “protection". It found that these terms are frequently misunderstood - often because they either aren't legally defined or, where defined, the wording is vague. This uncertainty may discourage individuals from raising concerns. 

Although some organisations have established internal frameworks and reporting is increasing, the research found that whistleblowing is still stigmatised, and whistleblowers may not receive adequate support.  

The research found that while many organisations respond effectively to whistleblowing concerns, some fail to do so appropriately. Concerns were raised about the consistency, independence, capacity, and capability of organisations to conduct investigations, engage with individuals, and manage conflicts of interest. 

The research highlighted that workplace culture and perceived safety are key factors influencing whether individuals chose to report concerns. Some participants suggest that current legislation fails to provide effective protection in practice - leading many whistleblowers to feel victimised by their employers after speaking up.

While some workers accessed justice through ACAS or employment tribunals, many participants criticised the redress process as inadequate, unbalanced, and falling short of expectations. Concerns about workers accessing justice include:

• Lacking resources - such as time, money, knowledge, skills and experience - to navigate the tribunal process, especially compared to their employer.
• Struggling with the mental resilience needed to manage a complex and emotionally draining process.
• Facing a high evidential burden to prove that detriment or dismissal was because of the protected disclosure.
• Experiencing unfair treatment, including restricted access to relevant information or risks associated with breaching Non-Disclosure Agreements (NDAs).
• Being constrained by tribunal time limits, which can prevent claims or access to interim relief. 
• Encountering delays within the tribunal system itself.

Suggested reform

The research highlights several important areas for reform. It raises a need to clarify and refine definitions, particularly regarding who is covered under the whistleblowing provisions and for the legal processes to be made clearer. It suggests improving the enforcement and oversight mechanisms to ensure whistleblowing protections are upheld, and providing clearer, more consistent and accessible guidance and support for workers, employers and prescribed persons (for example, a regulatory body). 

What does this mean?

This research serves as timely reminder of the legal protections afforded to workers who make protected disclosures. Given that there is no cap on compensation when a worker or employee has suffered a detriment or has been dismissed because they made a protected disclosure, compliance with the legislation is essential. 

You should check you have robust policies and procedures in place to support and respond appropriately when a disclosure is made. Ensure that any concerns raised are properly investigated, and that managers are trained and equipped with the necessary skills to handle such matters thoroughly and sensitively.

It remains to be seen whether the current Labour government will take further steps to amend the law in line with the recommendations of this research, which was originally commissioned by the previous Conservative government to inform policy development and potential legislative reform. 

We do know that some whistleblowing legislative reform is on the horizon. The Employment Rights Bill proposes to include allegations of sexual harassment within the scope of protected disclosures. The House of Lords also proposed amendments to the Bill, applicable to large employers, to extend the circumstances in which an employee is considered unfairly dismissed after making a protected disclosure, and to require such employers to take reasonable steps to investigate any disclosure. However, as the Bill is due to return to the House of Commons for further consideration following the summer recess, we will have to wait to see whether they these amendments are accepted or not. 

During the tenth sitting of the Commons Public Bill Committee on 10 December 2024, Mr Madders, Parliamentary Under-Secretary of State for Business and Trade, acknowledged the government's awareness of the "long-overdue requirement to look at whistleblowing law.” Therefore, further change may follow.  

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