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Whistleblowing Reform – a missed opportunity?

Whistleblowing Reform – a missed opportunity?

The Government has recently published its long-awaited response to its Call for Evidence on reforming the UK’s whistleblowing legislation.  Its initial reception was mixed, with many commentators considering that the Government had missed a major opportunity to improve the UK’s whistleblowing framework.   In this news alert we look in further detail at the Government’s response.

The Background to the Call for Evidence

The Government’s whistleblowing review was prompted by a number of high-profile scandals including the Mid Staffordshire NHS Foundation Trust scandal, in which whistleblowers were deterred from raising concerns. Despite the Government making amendments to whistleblowing legislation in the first half of 2013, enough additional concern had grown that it made a call for evidence in July 2013 to look in detail at the legislative framework.

The Response

The Response was published on 25 June 2014 and in it the Government has agreed:

  • to amend the category of those protected by whistleblowing legislation to include student nurses (and other similar student arrangements);
  • to publish new guidance for whistleblowers;
  • to publish a non-statutory code of conduct / model whistleblowing policy to help businesses create policies and instil a consistent level of best practice;
  • to analyse the current system which allows whistleblowers to agree to their claim being referred to an appropriate regulatory body in the UK (e.g. HM Revenue & Customs, Health & Safety Executive etc).  It will also ensure that successful whistleblowers are aware that their Employment Tribunal fees for bringing a successful whistleblowing claim can be reimbursed by the respondent;
  • to ensure the statutory list of regulators  is updated online and reviewed annually (although the  existing formal statutory process for amending that list will be retained); and finally,
  • to “explore options to celebrate those employers who embrace whistleblowing in their organisation”.  However, little detail is provided as to how this will be achieved.
In contrast, the items which the Government is not prepared to address (and where the general frustration with the Government response lies) include:
  • No further extension being made to the categories of workers covered by the whistleblowing legislation, although the Government says that it will keep the situation under review.  This leaves the question of whether partners in a general partnership are protected and has failed to expressly recognise the rights of LLP members to whistleblowing protection following the recent Supreme Court case on this issue (Clyde & Co LLP and another v Bates van Winkelhof – for further information please see our previous news alert here).  A general partner will now be left with the unenviable option of taking a case on the issue all the way to Supreme Court to get a definitive.
  • No additional categories of malpractice will be added to the existing six categories, which is surprising considering that the Government accepted that “the abuse and misuse of power” and “gross waste and mismanagement of funds” were not captured by the existing categories.
  • No changes will be made to the methods of disclosure for a whistleblower (differing tiered conditions are attached depending on whether the disclosure is made internally to an employer,  to regulators or to a third party, such as the media for example).
  • Regulators will not take on the greater role of protecting and investigating whistleblowing cases as was envisaged in the initial call for evidence.  Instead, the UK Government will introduce a duty on regulators to report annually on the whistleblowing complaints received.  On 1 August 2014, the government published the consultation Prescribed Persons: Annual Reporting Requirements on Whistleblowing, in which it seeks views on how to implement this annual reporting duty.  The consultation closes on 30 September 2014.
  • No financial incentives – as had been widely anticipated –  will be introduced to encourage whistleblowing (as is the case in the US and certain European countries).
Despite the initial hope by some that the Call for Evidence would see much needed improvements to the UK’s whistleblowing framework, the response from the Government contains little legislative reform.  This is regrettable, leaving gaps in the legislation, particularly for those working in the professional sectors.  Instead, the Government’s focus is improving the legislation on a non-statutory / cultural basis.  Unfortunately this approach seems somewhat optimistic and more disappointingly, a missed opportunity.