Public Concern at Work Whistleblowing Commission Consultation: Strengthening Law and Policy Submission to the Public Concern at Work Whistleblowing Commission Chartered Institute of Personnel and Development (CIPD) June 2013
Background 1. The CIPD is the leading independent voice on workplace performance and skills. Our primary purpose is to improve the standard of people management and development across the economy and help our individual members do a better job for themselves and their organisations. 2. Public policy at the CIPD exists to inform and shape debate, government policy and legislation in order to champion better work and better working lives, especially for young people. Our views are informed by evidence from 135,000 members responsible for the recruitment, management and development of a large proportion of the UK workforce. 3. Our membership base is wide, with 60% of our members working in private sector services and manufacturing, 33% working in the public sector and 7% in the not-for-profit sector. In addition, 76% of the FTSE 100 companies have CIPD members at director level. We draw on our extensive research and the expertise and experience of our members on the front-line to highlight and promote new and best practice and produce practical guidance for the benefit of employers, employees and policy makers. General Comments 4. The definition of wrongdoing in the current legislation is quite narrow: it might be expanded to embrace unethical as well as unlawful behavior, which would cover tax avoidance, for example. 5. Whistleblowing has assumed ever greater importance as trust in organisations has declined, however whistleblowing is always liable to damage the relationship between whistleblower and employer, even where a disclosure is in an organisation s interests. 6. Whistleblowing will often be a breach of the employee s implied contractual term of mutual trust and confidence, and whistleblowers will rarely be comfortable remaining within the organisation indefinitely. Other employees are also likely to
feel threatened where the whistleblower exposes a risk to the organisation and/or its future. 7. The legislation making the employer responsible for any victimisation of the whistleblower by other employees will not do much to change employee behavior; much of it will be informal. However, it will encourage more employers to adopt whistleblowing policies. How can we embed good practice whistleblowing arrangements in all sectors of the UK? For example, should they be mandatory? 8. It would be possible to require organisations to have a whistleblowing policy, but it would not be possible to require employees to use it. As with other areas of risk management, policies are useful only insofar as they are implemented. Do you think there should be financial or other rewards for whistleblowers? What are the advantages and disadvantages? How would the rewards be funded? And what about non-financial wrongdoing? 9. Until the requirement that whistleblowers should show good faith was removed by recent legislation, it would probably have been counter-productive to offer financial or other rewards to whistleblowers since this could have raised at least an initial assumption that they were motivated by the prospect of reward. 10. Where there is a powerful public interest in encouraging whistleblowing, for example in the public sector, rewards might be worth considering. One example might be in relation to public sector contracting, where the taxpayer has a strong interest in fair and open competition. Given recent Ministerial pronouncements on the priority for patient care, the NHS might also offer a suitable test-bed.
Do you think the Public Interest Disclosure Act is working? Are there any ways in which it can be simplified or improved? 11. The question is, what does working mean in this context? If the Act is intended to protect whistleblowers, we might conclude that it is unsuccessful since many whistleblowers continue to be ostracised by colleagues. Similarly, if the Act is intended to encourage whistleblowers, we have no evidence that it has. 12. It is not easy to think of ways in which the Act might be simplified or improved. Whistleblowers are never likely to be popular since, at least in the short term, their actions may appear to put their organisation s future on the line and/or threaten jobs. The old phrase about shooting the messenger still has relevance. Should wrongdoing be more broadly defined within PIDA? Are there any other categories which should be added? 13. The list in section 43B of the Public Interest Disclosure Act 1998 is curiously limited. Assuming (as we must) that dangers to health or safety are in themselves likely to be unlawful, the list focuses largely on illegality, with only the environment qualifying for special attention. But what about tax avoidance, for example, which has gone up in recent months as a priority for public concern? The area of unethical behaviour is potentially very wide but can have a substantial impact on company performance and on the public purse. Further consideration needs to be given to extending the list in this area. Do the Government s amendments to the public interest test and to good faith achieve a fair balance between employer and employee interests? 14. The new public interest test seems likely to require testing in courts and tribunals before it is clear whether it will give rise to disproportionate legal argument but in principle it is not unreasonable. Indeed the public interest test might be an
adequate catch-all definition of those disclosures that are entitled to legal protection. 15. The need for whistleblowers to show good faith was presumably incorporated in the legislation so as to reduce the possibility that whistleblowers might claim protection for indulging personal grievances or grudges. Given the current focus on protecting the public interest, it seems not unreasonable to look, not at the motives of the whistleblower, but at the truth or otherwise of their claims and the impact on the wider public interest. Should there be a broader, more flexible definition of worker within PIDA to deal with the many different types of worker and working arrangements? Are there any categories of persons not now covered which ought to be? 16. The PIDA aims to protect workers from mistreatment by their employer. All individuals who are in a position to be disadvantaged by an employer, including trainees, volunteers and interns should be included, as in principle should other special categories such as ministers of religion. 17. The Civil Service Code should be amended to allow civil servants the freedom to take concerns to an external body, like employees in other sectors, if they have no success in getting heard internally. Protection for whistleblowers limits the implied contractual duty of mutual, confidence and good faith between employer and employee but It is unclear on what grounds the civil service as an employer should be singled out for special protection from whistleblowers. 18. However the armed forces and intelligence services might justifiably continue to claim special treatment.
Should a worker who has been wrongly identified as having made a protected disclosure be entitled to a claim under PID A? 19. A worker who is mistreated because of a mistaken belief that he or she is a whistleblower should have the same level of protection as a whistleblower. Should a job applicant be entitled to claim against a prospective employer if refused employment because of a previous protected disclosure? 20. Statutory protection from blacklisting is currently limited to trade union activities, presumably because the issue has been identified as mainly targeting trade union activists. There is no obvious reason why similar protection should not be extended to whistleblowers. However such protection might be of limited value to whistleblowers, particularly where their claims are given a high profile and they are named in the media. 21. Whistleblowers might be given comparable protection to that applying to trade unionists in relation to discrimination in recruitment and dismissal. So a job applicant would be entitled to claim against a prospective employer if refused employment because of a previous protected disclosure. Should there be a broader, more flexible definition of prescribed persons within PIDA? Are there any types of prescribed persons not now covered that ought to be? 22. The current complex provisions outlining different levels of protection in relation to different prescribed bodies seem to imply differences that don t exist or are hard to identify. It seems sensible to encourage whistleblowers to approach first someone in their organisation, secondly a regulatory body (if there is one) and only after that another external body (including the media). A broader definition of prescribed bodies might usefully include both MPs and trade unions.
Should there be different protection for those who go to the media? 23. It is unclear why different protection should apply to those who go to the media. The impact of going to the media is liable to be greater but that does not make it less legitimate. Should the causation test for unfair dismissal be the same as the test for detriment in whistleblowing cases? 24. The test of causation should be the same in each case. Should a worker be able to obtain interim relief in detriment claims? 25. The same protection should apply to detriment as to dismissal. However such protection will not necessarily enable a whistleblower to hang on to their job if both employer and colleagues are hostile to their activity. Is the protection related to gagging clauses in section 43J PIDA clear enough? Are people appropriately advised about this aspect of compromise agreements? 26. It is important to distinguish between compromise agreements and gagging clauses. Gagging clauses in the NHS were aimed at preventing employees or ex-employees from drawing attention to issues about failings in patient care. It remains legitimate for compromise (or settlement) agreements to be used in the NHS and to restrain employees from commenting publicly on other issues.
Should regulators take an interest in the whistleblowing arrangements of the organisations they regulate? Do they make adequate use of information brought to them via whistleblowing? Should regulators do more to protect whistleblowers? 27. Regulators should regard whistleblowing as a major potential source of information relevant to the behaviour of organisations in their sector. They should not however be responsible for taking action to protect whistleblowers, beyond protecting the source of information they receive from whistleblowers. Should the UK set up a whistleblowing ombudsman service? If yes, what could this look like (an ombudsman for each sector or an overarching ombudsman)? 28. It is unclear what job an ombudsman would do, whether based on an individual sector or across the board. There would be some risk of blurring lines of responsibility between ombudsman and regulators. Should there be specialist tribunals or specialised judges for PIDA claims? 29. No. There is every reason why all claims arising in the workplace should be dealt with in the same system. The skills and experience appropriate to dealing with issues about disclosure are essentially the same as those for dealing with other issues arising in the workplace. Employment tribunals are not required to assess the validity or impact of the allegations of wrongdoing being brought by the whistleblower. Should there be an open register of PIDA claims? 30. Such a register would be unhelpful since it would raise allegations that had not been proven or even tested.
Should the referral of PIDA claims to a regulator be mandatory? 31. This seems sensible. Should PIDA claims be exempt from employment tribunal fees? 32. This is not a proposition that can sensibly be entertained. On what basis could it be justified? Whether or not it is judged that the fees regime is fair, it should be applied to all claims. If PIDA claims were exempted, a case would no doubt be made to exempt other claims, for example those for discrimination on grounds of sex or disability. Should the Employment Tribunal have the power to make recommendations and levy fines in PIDA claims? If so, how? 33. Again, this suggestion is best seen as a stalking horse for raising other, wider agendas. Should the ET have the power to refer regulatory or criminal matters to the appropriate authority(ies)? 34. Why not? Surely the tribunal service is already required to notify the regulator of appropriate claims?