Background
Although whistleblowers in the UK could avoid being sued for breach of confidence through a public interest defence, they had no protection against retaliation and dismissal by their employer before PIDA came into effect. The creation of the legislation was largely driven by a series of financial scandals and health and safety-related accidents that could have been prevented by allowing employees to speak up.
That outcome resulted in a heightened interest in whistleblowing that saw two protection bills enter Parliament 1995 and 1996. Although both fell through, Richard Shepherd’s similar bill received support on the condition that it became part of the Employment Rights Act 1996. Introduced to the House of Commons in 1997, it moved to the House of Lords in 1998 before coming into force at the beginning of 1999.
Who does PIDA protect?
Protection applies to both employees and ‘workers’ with the latter group entailing many types of employment relationships and working arrangements under section 43K of the Employment Rights Act 1996. This extends whistleblower protection to agency workers, contractors, homeworkers, certain NHS practitioners, nurses and midwives in training, trainees, police officers and crown employees.
There are certain groups that are not covered by PIDA and these include the genuinely self-employed, trustees, volunteers, non-executive directors, etc.
What concerns can employees raise?
To qualify for protection under PIDA, the person speaking up has to make what is termed a “protected disclosure” which has three primary elements: :
- The person must provide information about a concern they “reasonably believe” shows a category of wrongdoing set out in the law. In this case, it is not necessary for the information contained in the disclosure to be true. A whistleblower simply needs to show they have had a reasonable basis for reporting and there will not be consequences if there has been a mistake.
- They must reasonably believe that the concern is in the public interest. This refers to a worker raising concerns that impacts people other than just themselves, therefore falling under the public interest. It is separate to a case where a worker is experiencing personal problems which would therefore be a grievance issue. There are also examples of cases where the matter is both personal and in the wider interest such as workplace discrimination or bullying.
- They must raise the concern in accordance with the law – either internally to their employer or externally to an outside body. When raising concerns internally to senior staff, it is relatively easy to qualify for protection. Externally, the same is true when disclosures are made to a prescribed person such a regulator who is obliged by the law to listen to the concerns. It is more difficult when wider disclosures are made as more stringent tests need to be completed.
PIDA and the EU Whistleblowing Directive
Strictly speaking, the UK is no longer under a legal obligation to implement the EU Whistleblowing Directive following its departure from the European Union. Nevertheless, the Directive remains highly relevant for organisations with wider EU operations and much of it is already contained within existing UK law. There are some differences, however, as outlined below: :
- Whereas the EU Directive requires organisations with 50 or more employees to establish internal whistleblowing channels, there is no equivalent UK requirement (with the exception of some specific firms in the financial sector).
- The EU legislation makes it obligatory to keep records of reports and there is no such requirement in the UK though this is likely to occur in HR departments anyway.
- The EU Directive prescribes a timeline that must be followed whereby receipt of the report is acknowledged by the organisation within seven days while further feedback must be given within three months. This is not a requirement in the UK.
- In terms of whether disclosures are protected, UK law focuses on the subjective belief of the whistleblower while the EU legislation examines whether someone speaking up had “reasonable grounds” for their disclosure.
- Protection relates to breaches of EU law falling within specified sectors under the EU Directive whereas PIDA focuses on categories of wrongdoing rather than being limited to sectors.
Given that the UK implemented its whistleblower protection law more than two decades ago, UK companies are actually in a better position to fulfill the requirements of the EU Whistleblowing Directive than many of their continental counterparts. According to the Whistleblowing Report 2021, some 73% of UK companies utilise a whistleblowing system compared to 63.4% in Switzerland, 63.2% in Germany and just 54.1% in France.
That figure was even higher among large businesses with 250+ employees+ at 74.2%. UK companies were also found to have had their whistleblowing systems in place for far longer than many other countries. Even though it is highly unlikely that the UK will directly implement whistleblowing legislation in line with the EU Directive, the same report found that 17.1% of companies meet all of its requirements. Again, this is ahead of Germany (14.1%), Switzerland (5.8%) and France (5.5%).
Criticism
Despite the fact that much of the EU Whistleblowing Directive is already enshrined in UK law, PIDA has some shortcomings. It has been criticised for not forcing employers to implement a policy regarding disclosures while it also fails to prevent organisations from blacklisting or refusing to hire people who spoke out in their previous jobs. The legislation has also been judged as being out of date and overly complex while volunteers and the self-employed are not among those afforded protection. In addition, it does not make a provision for psychological harm which is common among those blowing the whistle. Given these weaknesses, the UK is seeking to overhaul PIDA and re-establish itself at the forefront of global whistleblower protection.
Future steps
As part of the above process, two new bills entered parliament. The Public Interest Disclosure (Protection) Bill failed but the second – the Office of the Whistleblower Bill – is still active. It would require the government to establish an Office of the Whistleblower which would be responsible for the administration of arrangements to facilitate speaking up. It would have the following powers:
- Directing and monitoring the activities of relevant bodies on issues such as confidentiality and how disclosed information is used.
- Consulting on amending or replacing current UK whistleblowing laws
- Being a point of contact for individuals seeking to disclose information about wrongdoing
- Maintaining a fund to advise and support whistleblowers
- Creating and maintaining a panel of accredit legal firms and advisory bodies to advise and support those speaking out
- Providing financial assistance to those who have had their employment, reputation or career harmed due to whistleblowing
- Publishing a report of its activities to parliament on an annual basis
Conclusion
PIDA was a trailblazing law for its time but given that more than 20 years have passed since its introduction, calls to either overhaul or replace it are growing ever louder. Despite its weaknesses, however, its positive impact remains indisputable.
As well as being one of the first comprehensive pieces of whistleblower protection legislation in Europe, PIDA helped drive the implementation of effective whistleblowing systems forward in the UK. That has seen organisations in the UK outpace their peers in continental Europe in the race to be prepared for the introduction of the EU Whistleblowing Directive (which remains relevant for UK companies with EU operations as mentioned earlier).
Nevertheless, reform is clearly needed, and the new bill should significantly enhance the country’s levels of whistleblower protection if it makes it through parliament and into law.
