Written submission from Protect (ERB0005)
November 2024
This is a short submission from the whistleblowing charity Protect looking at the changes to whistleblowing protection in the Employment Rights Bill and why we believe this is a clarification of rights, rather than a strengthening of whistleblowing protection, which was promised by the Government during the election.
Our submission will answer the following questions:
Does the Employment Rights Bill adequately safeguard the workers it seeks to protect?
Are there areas of employment law not covered by the Bill that weaken workers’ protections?
Protect
Protect is the UK’s leading whistleblowing charity, our goal is to stop harm by encouraging safe whistleblowing. Through our Advice Line, we support more than 3,000 individuals each year and have handled more than 50,000 cases since we were founded in 1993. We work with thousands of employers every year helping them create good workplace cultures for speaking up.
We welcome the Bill and its changes to strengthen the law on sexual harassment by encouraging the use of whistleblowing channels. However, whistleblowers are not adequately protected by the law, and this Bill does not increase their protections. There remain significant groups of people in the workplace who have no protection at all if they speak up about risks or harms.
Election commitment to strengthen whistleblowing protection
The Government announced the Employment Rights Bill in the 2024 King’s Speech, saying it is “committed to making work pay and will legislate to introduce a new deal for working people to ban exploitative practices and enhance employment rights”.
The Employment Rights Bill delivers only partially on a key pledge of the Labour manifesto, which promised an employment bill within the first 100 days to deliver the New Deal for Working People. The New Deal document promised to ‘strengthen protections for whistleblowers, including by updating protections for women who report sexual harassment at work.’
At Protect, we have a number of proposals that we would like to see added to the Employment Rights Bill to strengthen whistleblower protections and bring the UK back in line with the best whistleblowing protections in the world. We have set these out in our draft whistleblowing bill. Key changes that we think need to be added include duty to investigate, and a change to the current test for whistleblower dismissal which creates too high a hurdle at tribunal.
Clarifying rather than strengthening
Our view is that the Employment Rights Bill clarifies rather than strengthens the protection for whistleblowers. We are supporting section 18 Protection of disclosures to sexual harassment of the Employment Rights Bill which will make it clear that whistleblowers can raise concerns about sexual harassment through whistleblowing channels, and receive protection (not to be treated detrimentally or dismissed) if they do so. This will apply to whistleblowers who raise their concerns with their employer, as well as disclosures made to regulators, MPs and the media.1
The current system makes it very difficult for anyone facing harassment at work to know how to raise concerns other than via a grievance , which often places them in a confrontational process against the person they are accusing.
It is not widely understood that whistleblowers can already get protection for raising concerns about sexual harassment if they argue the disclosure was based on their reasonable belief that someone’s health and safety was being endangered, or there was a breach of a legal obligation, or that the harassment amounted to a crime. This protection requires knowledge of the statutory and case law, and so many whistleblowers do not have access to legal representation.2 The new clause 18 makes this protection much more accessible and easier to navigate.
Other provisions in the Bill require employers to take “all reasonable steps” to prevent sexual harassment and opening their whistleblowing channels should be seen as part of these steps. All employers should make clear in their whistleblowing policies that raising concerns can include matters of sexual harassment or other toxic workplace cultures. In our experience many employer policies currently direct all discrimination concerns to the grievance route.
By adding a new “category of concern” on the face of the statute, it will be clear to those who experience, or witness, sexual harassment that they can raise concerns through whistleblowing channelsand that legal protection will support this disclosure for those who face harassment or are witnesses to it.
These changes will go some way to prevent another Harrods-type scandal by encouraging more people come forward and raise concerns, but this is no guarantee the incident itself will be investigated by an employer. We would like to see Clause 17 amended to make it clear that any report of sexual harassment whether via grievance or whistleblowing channels will be investigated. Those who raise concerns as whistleblowers are often witnesses rather than victims, and it is not appropriate to consider such reports as “complaints” as set out in Clause 17, page 31, line 3.
The cost of ignoring whistleblowers
Most scandals and disasters have a point where the organisation e had a chance to either prevent or severely reduce the harm, if only they had listened to the alarm raised by their own staff. The Post Office Horizon scandal and the Lucy Letby case are two examples where whistleblowers tried to raise concerns in the workplace, only to face a wall of silence and retaliation for doing so.
The scandal that has recently emerged at Harrods (where over 100 victims have come forward alleging that Al Fayed sexually harassed or raped them) demonstrates that, without effective speaking up arrangements, appalling sexual misconduct can go unpunished and crimes can be covered up.We speak to around 3000 whistleblowers a year on our free, confidential Legal Advice Line and 40% of whistleblowers calling us for advice say they are ignored when they raise concerns in the workplace. Ignoring whistleblowers can have devastating consequences.
Safey danger at an industrial plant
This case study taken from our Advice Line highlights how a duty to investigate could push employers to address concerns at a much earlier stage:
"Tom," a gas plant manager, uncovered severe regulatory breaches at his workplace. Defects in the plant’s structure, including inadequate cooling and gas leaks, posed significant environmental and health risks. Despite raising concerns with his line manager and senior management, Tom's warnings were repeatedly ignored.
Determined to prevent disaster, Tom confidentially alerted the company’s board of directors, leading to an independent investigation that confirmed his findings. Still, no action was taken. Seeking advice from Protect, Tom escalated the issue to the regulator, who fined the company and enforced necessary safety measures. Thanks to Tom’s persistence, serious public harm was averted.
A duty to investigate
Outside of the Financial Services Sector there is no legal requirement for organisations to investigate whistleblowing concerns or even to have a whistleblowing policy. This means concerns go unheard and risks fester, resulting in scandals, loss of lives and livelihoods, reputation and financial damage. Good corporate governance demands that whistleblowing should be taken seriously, and only a duty on employers to investigate concerns will deliver that.
In October the Institute for Directors in their report The Post Office Scandal A failure of governance backed our calls for whistleblowing protection in ensure all employers had robust whistleblowing arrangements when they said, ‘as advocated by Protect, the UK’s leading whistleblowing charity, all employers should be required to meet standards for whistleblowing and follow recognised procedures.’ We are also pleased that the Home Office’s newly published statutory guidance on the failure to prevent fraud offence recognises the importance of effective whistleblowing arrangements.3
There is cross-party support for this change has with three former Ministers in Baroness Hodge, Alistair Carmichael and Sir Robert Buckland all supporting our amendment. The call for all employers to have a duty to investigate is also supported by whistleblowers and the APPG on Anti-Corruption and Fairer Taxation has called for such a duty in its recent manifesto.
The Employment Rights Bill represents an opportunity for there to be a step change in whistleblowing protection and to require organisations to act when concerns are raised by whistleblowers. This change will not increase burden on businesses as good organisations will already investigate whistleblowing concerns, while bad organisations will be held to account.
Other areas where protection can be strengthened
There are two other ways in which whistleblowing protection can be strengthened that we think the Government should adopt and the committee should promote:
Ensure all workers are protection
Currently only ‘workers’ and ‘employees’ are protected as whistleblowers under employment law. However, whistleblowing law has not kept pace with the modern workforce and the rise of the “gig economy”. Today, many types of people who might make a protected disclosure and who could suffer if they do are left unprotected. This includes sub postmasters, self-employed contractors, job-applicants, non-executive directors, trustees, volunteers, and trainees these groups are often encouraged through whistleblowing policies to raise concerns, yet they are not protected.
All those in the workplace should be protected if they speak up. We would like to see an amendment that expands the scope of whistleblower protection, as has already happened in many other countries, including across the EU (as part of the “whistleblowing directive” (INSERT REF)
Simplifying the legal tests
It is too easy in our opinion for employers to dismiss a whistleblower for the way they have raised a concern, by annoying or offending managers and colleagues, even when the concern they have raised is well founded. Whistleblowing by its nature often involves powerful individuals in an organisation being challenged, and uncomfortable truths are told. Employers all too easily can simply say to a tribunal that a senior manager’s relationship with a whistleblower has broken down permanently as a justification for dismissing or forcing this person out.
Current whistleblowing law in the Employment Rights Act 1996 requires a whistleblower to show that their dismissal is due to having raised concerns that are in the public interest. To prove it is an automatically unfair dismissal, they must show the whistleblowing was the “main or principal” reason for the dismissal. It is too easy for an employer to find another “main” reason.
However, if a whistleblower brings a claim for being treated badly - for example being bullied or ostracised for their whistleblowing (”suffering a detriment”- a whistleblower only need show that their whistleblowing was a “material factor” (among others) influencing the employer’s adverse treatment.
The policy rationale for these tests is that a whistleblower shouldn’t be able to rely on whistleblowing protection to bolster their rights when there are genuine concerns about that person’s performance or conduct. But the balance is tipped to far towards the employer who too easily can deflect responsibility by citing minor reasons for termination, and their access to information about the whistleblower’s work history allows them to cast doubt on the whistleblower's professionalism, often exaggerating flaws. The legal case of Kong, which was heard at the Court of Appeal, demonstrates this imbalance well, and shows why we need Parliament to intervene:
Kong vs Gulf Bank International
Ms. Kong, Head of Financial Audit at Gulf Bank International (UK), blew the whistle to Head of Legal (Ms. Harding) in October 2018 about the unsuitability of a financial compliance template (MRPA) for certain transactions, which she believed could put the bank at regulatory risk. Ms. Harding believed the whistleblowing questioned her competence and felt Ms. Kong was criticising her. This led to tension between the two, and Ms. Kong was dismissed in December 2018.
Despite Ms Kong having blown the whistle and the tension flowing from this, the bank claimed Ms. Kong was dismissed for questioning Ms Harding’s competence rather than the whistleblowing. Ms. Kong took her case to an employment tribunal, but the Courts ruled that her dismissal was based on personal criticism of the way she criticised her colleague, not the disclosure.
This decision was made despite the Court finding Ms. Kong’s disclosures were not only valid but raised in the right way. However, because Ms. Harding was “upset” with Ms. Kong and way she questioned her it was seen as a strong enough break on the causation between the disclosure the dismissal.
Ms. Kong’s case underscores the minefield whistleblowers face when personal conflicts intertwine with whistleblowing- even if a whistleblower is right about the concern- if they upset or offend their managers - who are inherently more powerful than them - this can end their legal protection.
Conclusion
In conclusion we believe the Employment Bill does not yet fulfill the promise from the Government during the election to strengthen whistleblowing arrangements. It very helpfully clarifies and simplifies the way sexual harassment can be raised via whistleblowing arrangements but has not extended the protection to any new groups.
The chief defect with the current legal framework is that it provides an after-the-event remedy but offers no guarantee a whistleblowing concern will be addressed, leading to whistleblowers seeing their concerns ignored with in some cases devastating consequences.
The protection itself does not cover everyone in the workplace- sub postmasters for example are not included as a worker- while the legal test to prove a whistleblower has been dismissed for blowing the whistle it weighted to heavily in favor of the employer.
For further information please contact:
Doug Wilson, Parliamentary Officer
