Protection for whistleblowers, who are often in a privileged position to be able to report serious harm or the risk of such harm, is recognised increasingly across the domestic and international landscape as being of significant societal value. Recital 1 of EU Directive 2019/1937 of the European Parliament and of the Council of 23 October 2019 (“EU Whistleblower Directive”) on the protection of persons who report breaches of Union law, recognises exactly this point: “Persons who work for a public or private organisation or are in contact with such an organisation in the context of their work-related activities are often the first to know about threats or harm to the public interest which arise in that context. By reporting breaches of Union law that are harmful to the public interest, such persons act as ‘whistleblowers’ and thereby play a key role in exposing and preventing such breaches and in safeguarding the welfare of society…”).
In Great Britain (“GB”), protection for whistleblowers was introduced, as a domestic initiative, following extensive campaigning in the 1990s and in the wake of major disasters where employees had known something was seriously wrong within their organisations but were too afraid of reprisals to step forward. Government guidance has described workers as “often the first people to witness any type of wrongdoing within an organisation. The information that workers may uncover could prevent wrongdoing, which may damage an organisation’s reputation and/or performance, and could even save people from harm or death.” Indeed, in Bladon v ALM Medical Services Ltd [2002] ICR 1444, the first Court of Appeal decision to consider the whistleblowing provisions, Mummery LJ described them as striking “an intricate balance between (a) promoting the public interest in the detection, exposure and elimination of misconduct, malpractice and potential dangers by those likely to have early knowledge of them, and (b) protecting the respective interests of employers and employees”. In fact, as explained below, whistleblowing disclosures can be made to external bodies and a wide range of individuals, including the media in certain circumstances.
The Covid-19 pandemic has placed unprecedented demands on workers in both the public and private sector, some of which may require them to compromise their own personal safety. These demands are set against a backdrop in which the sudden and dramatic turbulence, uncertainty and impact wreaked by the new virus, have led to widespread reporting and concerns that inadequate protective measures or steps have been taken, whether by government in determining the “best” course of action, or by employers as to their preparations and ability to protect staff. Yet, such is the individual and societal impact of the pandemic that many workers on the frontline may be discouraged from voicing concerns for fear of undermining the fight against Covid-19. Moreover, some workers may be actively punished for choosing to speak out due to fears that any “challenge” will erode the collective effort to save lives – see also this item on Amazon employees and this on GPs. A recent judicial review has been launched in which two doctors seek not only to amend the current PPE Guidance, but also to obtain urgent clarification on the extent to which key workers are required to attend work in the absence of effective PPE.
It follows that there is an urgent need to consider the extent to which the Employment Rights Act 1996, as amended by the Public Interest Disclosure Act 1998 and the Enterprise and Regulatory Reform Act 2013 (‘ERA 1996’) provides effective protection to individuals who highlight dangerous working conditions or challenge Government decisions concerning the Covid-19 pandemic.
In early April 2020, we were instructed to urgently advise The Good Law Project on the legal whistleblowing protection during the current pandemic. A copy of our joint advice is available here in which we analyse the ways in which whistleblowers would be protected in three distinct scenarios:
- A senior NHS manager who is concerned about the lack of personal protective equipment (‘PPE’) for medical staff.
- A warehouse worker who is dismissed for posting photographs and comments on social media concerning a lack of “social distancing” in the workplace which she considers unsafe.
- A member of a UK Government scientific advisory board who is concerned about the approach adopted towards modelling as part of the fight against Covid-19.
We do not repeat the detail of our analysis here. Instead, in this blog, we highlight some of the key strengths and weaknesses highlighted in our joint advice, and as relevant to this analysis, within the current whistleblowing framework in GB. Whilst the current whistleblowing framework does provide for extensive and effective protection for employees, there remain some notable gaps in that scheme of protection. We consider that government should seek to remedy these at the earliest opportunity, since they may become more acute in light of the specific challenges created by Covid-19. Indeed, we note that the government has committed to leading the way on workers’ rights, and to reviewing whistleblowing protection as it leaves the EU.
Strengths
- Detailed knowledge of health and safety legislation is not required
GB has a well-developed legal framework which obliges employers to protect the health and safety of their staff and which applies during the current Covid-19 pandemic. These obligations come from statute (for example, The Personal Protective Equipment at Work Regulations 1992 (‘PPE Regulations 1992’) which implements EU Directive 89/656/EEC (‘the Directive’), The Control of Substances Hazardous to Health Regulations 2002, the Health and Safety at Work etc Act 1974, the common law and the contract of employment. In respect of the COVID-19 pandemic itself, both emergency legislation and (evolving) guidance – such as this item on social distancing in the workplace and this on guidance and support for employees – has been produced by the UK, Scottish and Welsh Governments with the overall aim of seeking to protect the health and safety of the population, including workers.
Importantly, an individual can become a whistleblower without needing to have a detailed understanding of these complex and often nuanced provisions, the complexity of which is neatly illustrated by James Robottom’s recent post on this blog, entitled “The legal rights of healthcare workers to personal protective equipment during the COVID-19 pandemic.” Specifically, a disclosure of information will amount to a protected disclosure where the individual simply has a reasonable belief that the disclosed information tends to show that a person has failed, is failing or is likely to fail to comply with any legal obligation (s.43B(1)(b) ERA 1996) or that the health and safety of any individual has been, is being or is likely to be endangered (s.43(1)(d) ERA 1996).
Reasonable belief in this context is a mixed subjective / objective test so that the individual need only hold the belief and hold it on objectively reasonable grounds. Save in the most obvious cases, a whistleblower should be able to identify at least the nature of the relevant legal obligation so that it is based on more than a moral or ethical belief that certain actions were wrong – see Blackbay Ventures Limited (t/a Chemistree) v Gahir [2014] ICR 747. Importantly, it is not necessary for a whistleblower to show that a legal obligation has been breached; they must only show that they reasonably believed this to be the case. This is important because ordinary people at the front-line will not necessarily know, and should not be expected to know, the intricacies of complex health and safety law and other legal obligations.
It is not enough to formulate a belief on the basis of rumours, or unfounded suspicions, and individuals with “insider” or “professional” knowledge will be held to a higher standard in relation to the objective element of the test (Korashi v Abertawe Bro Morgannwg University Local Health Board [2012] IRLR 4). Still, workers who are in occupations where they are exposed to risk and reasonably believe that their employer is not taking adequate steps to protect their health and safety should feel confident that there are legal protections in place which will support them to speak out.
- Whistleblowing protection complements existing health and safety legislation
The ERA 1996 neatly dovetails with existing health and safety legislation. Specifically, regulation 14(2) of the Management of Health and Safety at Work Regulations 1999 places a positive obligation on employees to report concerns they may have about health and safety issues where they reasonably consider that certain health and safety risks arise. The mirroring of the reasonable belief test in both health and safety legislation and the ERA 1996 ensures that individuals are provided with whistleblowing protection where they are fulfilling their statutory obligations to “call out” workplace dangers.
The whistleblowing framework also sits alongside the (less-tested) provisions in the ERA 1996 which seek to protect employees directly from being subjected to a dangerous working environment. By s.44(1)(d) and s.100(1)(d) ERA 1996, employees have the right not to be subjected to any detriment by any act, or any deliberate failure to act, by their employer and the right not to be dismissed on the ground that “in circumstances of danger which the employee reasonably believed to be serious and imminent and which he could not reasonably have been expected to avert, he left (or proposed to leave) or (while the danger persisted) refused to return to his place of work or any dangerous part of his place of work”. Similarly, s.44(1)(e) and s.100(1)(e) provide some protection for employees where, “in circumstances of danger which the employee reasonably believed to be serious and imminent, he took (or proposed to take) appropriate steps to protect himself or other persons from the danger.” For a more detailed analysis on the application of ss.44 and 100 ERA during the Covid-19 pandemic, see Schona Jolly QC here.
- Disclosures to third parties can be protected
The ERA 1996 is structured in a way which encourages workers to disclose their concerns to their employer, as opposed to third parties, in that there are the fewest legal obstacles to overcome under s.43C(1)(a) ERA 1996 in order to establish that a disclosure of information to an employer amounts to valid whistleblowing.
However, in the right circumstances, it is possible for individuals to speak to external bodies, or prescribed organisations such as regulators or professional bodies or MPs or the media. The relevant provisions are s.43C(1)(b)(i) ERA 1996, s.43C(1)(b)(ii) ERA 1996, s.43F ERA 1996, Schedule 1 to the Public Interest Disclosure (Prescribed Persons) Order 2014, s.43G ERA 1996, and s.43H ERA 1996.
These provisions are important because, as we write, the media is saturated with reports of front-line workers complaining about their working conditions and the risk that they will contract Covid-19. The whistleblowing provisions in the ERA 1996 are well crafted in that there is scope for individuals to gain whistleblowing protection when they disclose information, for example, provide photos, post tweets or speak to the press, even if this involves providing details which their employer might otherwise wish to keep confidential. However, the provisions governing third-party disclosures are much more onerous, and protection for these much will depend on the individual circumstances of the case. It is also worth highlighting that, in different scenarios from those which we have analysed in our joint advice, different provisions may come into play in which criminal sanction is attached to the disclosure of information: See, for example, The Office for Gas and Electricity Markets v Mr Pytel UKEAT/0044/17/JOJ under s.105 Utilities Act 2000. See also the hundreds of criminal offences to which no public interest defence is available, highlighted by the Law Commission in “Protection of Data: A Consultation Paper”, Chapter IV.
- Effective remedy available
To the extent that an individual is classified as a whistleblower under the ERA 1996 and can access the protections contained in s.47B ERA 1996 and s.103A ERA 1996, these twin rights can be enforced in the Employment Tribunal. The remedy available to claimants is meaningful since compensation is uncapped and claimants can, in the right circumstances, seek interim relief under s.128 ERA 1996 by way of reinstatement to their role pending the determination of an automatic unfair dismissal claim in circumstances where they are improperly dismissed for whistleblowing. Given the financial consequences of being out of work in the current climate, the reality of timescales in bringing claims before employment tribunals and the fear of retaliation by dismissal that has been reported widely, the interim relief measure is an important one that can be used as necessary.
- Human rights
Recent reports that NHS staff have been “gagged” from speaking out raise serious concerns both from a whistleblowing perspective and, more broadly, pursuant to free speech rights protected by Article 10 of the Convention (see also the recent post by Letsas and Mantouvalou for a detailed consideration of free speech issues engaged by the Covid-19 crisis). The strong whistleblowing protection afforded by the ERA 1996 does provide many of the checks and balances afforded by Article 10 of the European Convention of Human Rights. Recital 31 of the EU Whistleblower Directive specifically recognises that people “who report information about threats or harm to the public interest obtained in the context of their work-related activities make use of their right to freedom of expression and information, as enshrined” in Article 11 of the Charter and in Article 10 ECHR. To that end, Recital 46 of the EU Whistleblower Directive specifically notes that whistleblowers are “important sources for investigative journalists. Providing effective protection to whistleblowers from retaliation increases legal certainty for potential whistleblowers and thereby encourages whistleblowing also through the media.
In this respect, protection of whistleblowers as journalistic sources is crucial for safeguarding the ‘watchdog’ role of investigative journalism in democratic societies.” Although the government has stated that it does not intend to adopt the Directive as it leaves the EU, the case law of the European Court of Human Rights on freedom of expression will remain relevant (see, in particular, Guja v. Moldova, Application no. 14277/04, judgment of 12 February 2008, for the Six Principles of Review which were established for whistleblowing cases, and subsequent cases. It is noteworthy that the Court considers the first tier of disclosure to be either internal reporting to the employer or external reporting to “other competent authority or body” to be of the same reporting level. However, the second tier or “last resort”, is considered by the Court to be reporting to the public, for example to the media, where the first is “clearly impractical”. This case law is particularly relevant for whistleblowers in the public sector. Also of relevance is the Committee of Ministers’ Recommendation CM/Rec(2014)7 on the protection of whistleblowers adopted on 30 April 2014. The recent Council of Europe Guidance for governments on respecting human rights during the pandemic explicitly states that “the pandemic should not be used to silence whistle-blowers”. The provisions of s.43G and s.43H ERA 1996 may become particularly valuable routes to protect both the freedom of expression of and the employment protections for whistleblowers whose warnings might only be heard through public discourse.
Weaknesses
- Limited scope for protecting job applicants
The wide definition of ‘worker’ under s.43K ERA ensures that a broader category of individuals is protected than would be in respect of other employment rights pursuant to s.230(1)/(2) ERA 1996 – see, for example, McTigue v University Hospital Bristol NHS Foundation Trust [2016] ICR 1155, EAT – extending to ‘limb (b)’ workers under s.230(3) ERA 1996. This is notable in respect of workers across the NHS and also includes, for example, agency workers, homeworkers, student nurses and midwives as well as trainees. Protection for workers has continued to develop incrementally, as shown by the extension secured in, for example, Gilham v Ministry of Justice [2019] UKSC 44. These cumulative developments now mean that the vast majority of individuals at the heart of the Covid-19 crisis will be able to access legal protection for whistleblowing. However, some unjustified omissions remain in respect of who can qualify for whistleblowing protection. In respect of job applicants, only those seeking a job in the NHS can access whistleblowing protection as per s.49B(7)(a)-(p) ERA 1996 & the Employment Rights Act 1996 (NHS Recruitment – Protected Disclosures) Regulations 2018. Job applicants in other sectors are not protected. Indeed, the equivalent protection for job applicants in the social care sector, provided by S.49C ERA 1996, has not yet been brought into force. This difference in approach is irrational, since there can be little doubt that acts of whistleblowing have the potential to “taint” employees in the future. Recital 40 of the EU Whistleblower Directive recognises that “retaliation against volunteers and paid or unpaid trainees could take the form of no longer making use of their services, or of giving them a negative employment reference or otherwise damaging their reputation or career prospects.” Moreover, job applicants are protected from less favourable treatment under the Equality Act 2010 or because of trade union membership.
- Omission of volunteers, trustees and non-executive directors.
Equally concerning is that volunteers will not ordinarily be classified as “workers” which means that they cannot access the legal protection offered by the ERA 1996. In the current climate, where the UK Government is calling upon volunteers to assist in the fight against Covid-19, this is a troubling omission in legal protection for whistleblowers. Similarly, other key individuals who could play an important role in public protection through their involvement and supervisory work, such as trustees or Non Executive Directors, remain outside the scope of protection. It is worth considering the non-exhaustive list of individuals who should be able to seek whistleblowing protection, which is set out in Article 4 of the EU Whistleblower Directive, as a framework that could be easily transposed to afford the wider and broader protection which is needed ordinarily, and which becomes vital in this period where volunteers are so crucial to the national effort.
- Additional clarifications and changes
It is beyond the scope of this article to consider broader changes which may be required to enhance clarity and protections for whistleblowers within the ERA. However, it is worth drawing attention to the domestic gaps which could be plugged from the EU Whistleblower Directive so that workers’ rights here do not fall behind those of their colleagues once the Directive has been transposed – see, for example, those advocated by Protect. Such changes ought to include the current absence of public interest defences to criminal offences under some legislation, highlighted by the Law Commission in “Protection of Data: A Consultation Paper”, Chapter IV.
Conclusion
Whilst GB has developed strong and effective protection for whistleblowers over twenty years, the Scheme contains omissions and inconsistencies which need urgent remedy in the current crisis. As the impact of coronavirus deepens and strains our operational systems and workplaces, those who come forward to try to expose flaws, risks and failings should be properly protected under our domestic whistleblowing scheme.
About the authors:
Schona Jolly QC is a specialist barrister in equality, employment, human rights and international law at Cloisters Chambers. She is Head of Cloisters Human Rights Practice Group and Chair of the Bar Human Rights Committee of England and Wales.
Dee Masters is a specialist barrister in employment and discrimination law at Cloisters Chambers. She is Head of Cloisters Employment Practice Group.
(Suggested citation: ‘How effective is whistleblowing protection for workers at the centre of the Covid-19 pandemic?’ UK Labour Law Blog, 4 May 2020, available at https://wordpress.com/view/uklabourlawblog.com).
UK Labour Law 