02 Juli 2024 Kloe Halls EmploymentLinks

Happy Birthday, PIDA: Reflecting on 25 years of UK whistleblowing laws

25 years ago, the Public Interest Disclosure Act 1998 (“PIDA”) came into force, marking the UK as a trailblazer in the field of whistleblower protection. 
 
PIDA amended the Employment Rights Act 1996 (“ERA”), so that, for the first time, workers could blow the whistle and be protected against detriment and dismissal. A slow but sure culture shift emerged. Employers began moving away from seeing whistleblowing as a “problem”, to it being central to early risk detection and resolution. The subject matter of disclosures evolved and expanded. And expectations on companies for greater transparency and accountability grew.
 
So where are we now?


The whistleblowing landscape in 2024

Despite minor changes made to the whistleblowing protections under the ERA in 2013, no substantive changes have been made since its introduction. Critics argue that the whistleblowing framework is now out of step with modern workplaces and best practice. And the EU Whistleblowing Directive (the “Directive”) has only served to highlight potential shortcomings in the UK’s legal framework. 
 
Whilst ERA provides protection to certain individuals after they have blown the whistle and if they can prove they have suffered as a result, the Directive goes beyond this, including by prescribing how employers should operate whistleblowing procedures and deal with whistleblowers. Although the UK is not obliged to implement its requirements, the Directive has undoubtedly influenced market practice and provided inspiration for legislative change. 
 
Pressure to strengthen whistleblowing protection has taken various forms over the years. Private Members’ Bills have tried and failed to gain traction. Leading whistleblowing charity, Protect, persists in its campaign launched in 2021 to ‘fix’ UK whistleblowing law. Meanwhile, litigants have tested the boundaries of protection by invoking human rights arguments in an attempt to fall within the scope of the law’s protections.  
 
Common themes emerge from the calls for change: 
 

Expanding protection to more groups

  • Currently, UK whistleblowing law gives a finite list of individuals who are protected. Job applicants, volunteers and interns, non-executive directors and self-employed people are not expressly amongst those. The Directive, on the other hand, adopts a broader approach, seeking to protect those who may acquire information on wrongdoing in a work-related context. Its non-exhaustive list encompasses the above-mentioned categories of individuals and more. 
  • The Directive also offers protection beyond the person who blows the whistle to those connected or associated with the disclosure or whistleblower. This brings the likes of trade union representatives and even relatives within the scope of protection, providing certain conditions are met. 

Establishing minimum standards for responding to whistleblowers

  • The Directive requires employers to establish mechanisms and procedures for individuals to confidentially report concerns through internal channels. Specific timeframes for acknowledging, investigating and responding to reports required under the Directive help to impart a sense of importance and urgency to the process, ensuring that whistleblowers are not left in the dark after raising their concerns. 
  • In contrast, the ERA contains no mandatory standards or procedures for employers to follow when a whistleblowing report is made. Whilst certain regulated sectors, such as financial services, are subject to additional obligations over and above the ERA, whistleblowers have still felt that not enough feedback has been given to them after blowing the whistle. In response to these concerns, the FCA initiated a pilot scheme last year aimed at providing whistleblowers with more detailed feedback.1 

With research suggesting that 33% of UK whistleblowers are ignored after coming forward2, the EU approach undoubtedly offers a potential model for addressing this. 

 
Have UK whistleblowing reforms been silenced? 
In the wake of evidence that one in four Covid whistleblowers were dismissed3, the government announced last year that it would review the existing whistleblowing framework.
 
Concerns regarding the effectiveness of existing legislation and the pressing need to consider reform were further fuelled by data submitted by Protect as part of the Sexism in the City inquiry. Submitting that “lessons have not been learned... about responding to whistleblowing concerns”, Protect found a third of whistleblowers were ignored and 70% were victimised, dismissed or felt they had to resign.4   
 
However, with no review outcome published and a general election fast approaching, it remains to be seen whether a future government will take it forwards. Whilst giving no indications of wholesale reform to whistleblowing laws, the Labour party has suggested it would make various changes if it were to come into power, including bringing those who report sexual harassment into the remit of the legal framework.
 
Nonetheless, developments in the EU have exposed limitations to the ERA that the government may be increasingly pressured to address. The direction of travel cannot be ignored. 
 
Importantly, there is a growing recognition of the need for robust speak up and listen up cultures within organisations. This cultural shift has undoubtedly driven significant changes in how organisations respond to and treat whistleblowers, even in the absence of updated legislation.
 
As such, the stage may well be set for reform to legal protections under the ERA, regardless of the outcome of the upcoming general election. 

To find out more, visit our dedicated Listen Up! page or speak to your usual Linklaters contact.

 

1  Oral evidence: Sexism in the City (January 2024) 
 2  Silence in the City 2, Protect (2020) 
 3 Government reviewing whistleblowing rules amid record pandemic sackings, The Telegraph (March 2021) 
 4  Written evidence submitted by Protect (September 2023)