Key findings from the study found that:
• 40% felt current whistle-blowing law is not working
• 55% have no plans to change current practices in the next six months
• 35% have encountered whistle-blowing allegations in the last two years
• Nearly one third have experienced allegations that whistle-blowers have been ostracised or picked on
Legal changes taking place will mean that legal protection for employees who report wrong-doing by their employer or “blow the whistle”, will only be afforded to those raising whistle-blowing allegations of public interest. Disputes over personal issues, such as pay or performance management which lack a public-interest element, will no longer be protected under this legislation. At the same time, the element of “good faith” required by current provision is to be removed.
Simon Rice-Birchall, partner at Global Law Firm, Eversheds, comments:
“Most importantly for all employers, they could be held liable for the bullying of, or discrimination against whistle-blowers by colleagues, unless they can demonstrate they did all they reasonably could to prevent this.”
The Eversheds study results suggest employers are generally fairly confident with their approach to whistle-blowing, 86% reporting to have a clear and accessible policy. However what the feedback revealed also was that many respondents feel current legislation isn’t working.
Simon Rice-Birchall continues:
“Current legislation is not working either because it is open to abuse by employees, thereby diminishing its effectiveness, or because employees are simply too scared to voice their concerns, unaware or mistrusting of the legal protection offered.”
Clearly certain business sectors are more heavily regulated or, due to their nature, likely to encounter whistle-blowing allegations.The study included a very broad spread of business types and sectors, revealing that across this spectrum just under half of respondents report having encountered whistle-blowing allegations in the last two years. Many who have, also believe a substantial number of such allegations were motivated by personal reasons, not public interest – a third of those believing this was a factor in every case they encountered.
58% of those questioned did not foresee a need to change current policy in light of next week’s changes to the law. Many quite possibly believe they are unlikely to ever be on the receiving end of a whistle-blowing complaint and some, of course may be right in that.
Simon Rice-Birchall explains:
“Against a background of limited exposure to claims and a perception that many whistle-blowing allegations are spurious or misguided, it is perhaps understandable that our survey revealed a large proportion of respondents do not foresee a need to change current policy in light of next week’s changes to the law.
“Even so, there is a much bigger picture at play here and all employers would be well advised to pause a moment to consider it. The new provisions very much up the ante for employers and all may want to think twice about reviewing existing policy.”
The new public interest test narrows the scope of whistle-blowing and provides employers with an opportunity to provide much greater clarity for employees in terms of which of their concerns are legally protected as legitimate whistle-blowing. This is by no means absolute, not least since it is what the individual reasonably believes is in the public interest which counts. Even so, entirely personal issues, such as disputes over performance management or pay, will almost certainly fall outside of whistle-blowing protection, reducing radically the number of such claims in future.
However, the changes being brought about are potentially far more significant. From next week, employers will be vicariously liable for the maltreatment of whistle-blowers by colleagues unless they have taken all reasonable steps to prevent this.
Simon Rice-Birchall concludes:
“Our study suggested that nearly one third of respondents have encountered some form of bullying or other detriment in this context. In all likelihood such issues are currently dealt with as and when they arise on a case by case basis. However, a reactive approach is no longer the appropriate one. In order to demonstrate a “reasonable steps” defence, an employer will need to anticipate such conduct, as a minimum, not only having a clear policy but ensuring that policy is communicated and supported through training. Undertaking any of these steps after the event is too late.
“Adopting a proactive approach to deterring victimisation of whistle-blowers will necessarily involve bringing a paper policy to life and a message to employees that legitimate whistle-blowers will be supported. Could such a step in itself give potential whistle-blowers greater confidence to come forwards? And if the changes at very least have this effect, surely that is no bad thing. After all, employers who know the concerns of their employees will be well-placed to take appropriate action, rather than allow them to fester unheard –more confident in future as to which are potentially which are whistle-blowing issues and which are not.”