UK: Whistleblowing Commission Report

Earlier this year, with the help of some of our clients, we responded to a consultation paper produced by the Whistleblowing Commission.   The Commission was established up by the whistleblowing charity, Public Concern at Work, to review the effectiveness of whistleblowing in the UK. 

The Commission has today released its report which sets out 25 recommendations, including that a statutory code of practice be implemented and taken into account by courts and tribunals when deciding whistleblowing cases. The Commission has itself produced a draft code. We understand the government will be taking account of the Commission's report when it publishes the outcome of its own consultation on the UK's whistleblowing framework. 

The full report can be found here and the accompanying press release here.

 On 12 December we will be hosting a seminar on Whistleblowing and financial incentives: US practice and UK proposals. Our guest speaker will be Cathy James, Chief Executive of Public Concern at Work who will discuss the key findings from the Commission’s report. To find out more about our seminar, please click here.

The Commission's draft code emphasises the role that non-executives should play.  It provides that a worker should be permitted to raise concerns with an identified senior executive and/or board member and that the employer should identify one person with overall responsibility for the effective implementation of the whistleblowing arrangements.  Periodic audits of the arrangements should be carried out and there should be provision for the independent oversight and review of the arrangements by the Board, Audit or Risk Committee or equivalent body (which should also set out the terms of reference for the periodic audits).  Companies that publish annual reports should include information about the effectiveness of whistleblowing arrangements in their reports.

The Commission's report also emphasises the key role regulators have to play and suggests that regulators should be encouraged or required to police whistleblowing more effectively. This could be by regulators requiring those they regulate to adopt the code of practice and/or to review the registration of bodies who fail to provide effective whistleblowing protection.

The Commission decided against recommending financial rewards or incentives for whistleblowing.

Other recommendations include:

• extending the current categories of protected worker to include, among others, those wrongly perceived to have whistleblown, job applicants, student nurses, doctors and social workers, volunteers and interns, partners and non-executive directors, and overseas workers raising concerns about their UK employers and subsidiaries (even if the worker does not have a sufficiently strong connection to Britain)
• making the current list of types of wrongdoing non-exhaustive and adding gross waste or mismanagement of funds and serious misuse or abuse of authority to the list
• guidance on the meaning of 'in the public interest' (from June 2013, a disclosure is only protected if the worker reasonably believed that it was in the public interest)
• protecting disclosures made to trade unions in order to obtain advice
• changing the causation test for dismissal to be the same as for detriment (the less onerous test of 'on the grounds of' the disclosure
• making interim relief available in detriment cases and extending the time limit for applying for interim relief from 7 to 21 days
• making clear that so called 'gagging clauses' do not preclude a worker from making a protected disclosure, and requiring advice on a statutory settlement agreement to include advice on this
• removing the distinction between protected disclosures and mere allegations, so the latter would also be protected
• giving judges dealing with whistleblowing cases specialist training
• inviting the government to consider keeping a register of whistleblowing claims available to the public or at least for research
• referral of tribunal whistleblowing claims to relevant regulators to be subject to opt-out by the claimant, rather than opt-in as currently
• where a claim succeeds, giving tribunals power to make general recommendations as to the employer's whistleblowing arrangements
• government research to assess whether there could be a state sponsored agency to provide legal or financial support to whistleblowers.