Public Interest Whistleblowing: Mandatory Reporting?

1. Public Interest Whistleblowing: Mandatory Reporting? Catherine Hobby University of East London IER Conference: Workplace Issues: Taking up the issues with the new government London, 10th June 2015

2. Freedom to Speak Up Report, February 2015 “ … positive experiences of whistleblowing were a small minority” “There were descriptions of what can only be described as a harrowing and isolating process with reprisals including counter allegations, disciplinary action and victimisation.” Chapter 3 – Evidence from Contributors, p 53

3. Freedom to Speak Up Francis Recommendations - 20 Principles including: Principle 2 Culture of raising concerns Principle 5 Culture of valuing staff: Employers should show they value staff who raise concerns Principle 10: Training Principle 11 Support - Freedom to Speak up Guardians

4. Legal Protection “Legal Protection should be enhanced” Principle 20 – Extending the legal protection Executive Summary of Freedom to speak up, Francis Review, February 2015, p 21.

5. Reform of Public Interest Disclosure Act 1998 “The legislation does not provide an individual worker with guaranteed protection from suffering detriment if they make a protected disclosure, and contains no measure capable of preventing such detriments occurring. Instead it confers on workers a right not to be subjected to such detriment and gives them a route to obtain remedies if that right is violated. It must be said that those remedies are relatively restricted.”

6. Reform of PIDA • Complexity of 1998 Act • Awareness of PIDA low • Confusion as to provisions - Lack of understanding of distinction between whistleblowing and protected disclosure • Coverage of workers – extend definition of worker • Blacklisting • Role of Regulators

7. Small Business, Enterprise and Employment Act 2015 Small Business, Enterprise and Employment Act 2015 received Royal Assent in March 2015 provides: • Duty on regulators to publish information about whistleblowing concerns • Provides power to Secretary of State through regulations to prohibit NHS employers from discriminating against job applicants on grounds that they made a protected disclosure

8. Public interest Whistleblowing Section 43(B) as amended by ERRA 2013 • A ‘protected disclosure’ is a ‘qualifying disclosure’ under s 43B of the Employment Rights Act 1996. • A qualifying disclosure is a disclosure of information which, in the reasonable belief of the worker making the disclosure, was made in the public interest and relates to the following – • (a) a criminal offence • (b) failure to comply with a legal obligation • (c) a miscarriage of justice • (d) health or safety • (e) environment, • (f) deliberate concealment of any matter falling within any one of the preceding paragraphs

9. Public Interest Duty Chesterton Global v Nurmohdamed EAT 2015 “The words “in the public interest” were introduced to do no more than prevent a worker from relying upon a breach of his own contract of employment where the breach is of a personal nature and there are no wider public interest implications” (Mr Justice Supperstone, para 36)

10. Duty to Raise Concerns “the law seeking to protect whistleblowers is cast entirely in an employment context. It proceeds from an assumption that an exception needs to be made to a general requirement to keep the affairs of the employer confidential, rather than acceptance that all those providing a public service have a duty to raise concerns which affect the public interest.” Francis Report, 2015, p 49

11. Mandatory Reporting Following report of Professor Alexis Jay in August 2014 regarding sexual exploitation of 1.400 children in Rotherham over 16 year period, Yvette Cooper called for the cover-up of abuse to be a criminal offence: “We are still seeing the same mistakes being made, victims not being listened to. It is now time to have the mandatory duty to report, to make clear that cultural change has to take place in every institution”

12. Employment Tribunal fees 20% fall in PIDA claims 2012-13 2,744 PIDA Applications 2013-14 2,212 PIDA Applications Public Concern at Work, Is the law protecting whistleblowers?, May 2015

13. Lack of Justice “Unable to access legal aid and faced with the financial burden of paying for advice, representation and court fees means that many individuals are effectively being priced out of justice” Cathy James, Chief Executive of Public Concern at Work, May 2015

14. Official Secrecy Act 1989 No public interest defence Navy Whistleblower William MCNeilly was arrested on 18th May 2015. He had been on the run after alleging a catalogue of security failings at the Trident nuclear base in a 18 page report published on Wikileaks, claiming there was a ‘disaster waiting to happen’

15. British Bill of Rights? Repeal of the Human Rights Act 1998 “This will break the formal link between British courts and the European Court of Human Rights, and make our own Supreme Court the ultimate arbiter of human rights matters in the UK”. Conservative Party Manifesto, 2015

16. Conclusion “At present the law governing whistleblowing favours employers at a considerable expense to workers. It is hoped the Government will take this opportunity to redress the imbalance and effectively safeguard the rights of whistleblowers. If workers are not fully protected they will fear blowing the whistle and important allegations of malpractice, illegality, abuse and misdeeds will go undiscovered.” (Hobby – IER Response to BIS Consultation, 2013)