Exposing wrongdoing: the problems facing whistleblowers
21st February 2017
Public attitudes to whistleblowers may have vastly improved but the legal landscape faced by those raising concerns still presents a variety of problems and is arguably becoming more hostile.
Legal aid cuts, the introduction of Employment Tribunal fees and reduced access to free legal advice have all combined to make the tribunal process more daunting for claimants and lessened their prospects of success. Inevitably, these changes particularly affect unrepresented whistleblowers since the complex legal landscape is hard to navigate alone.
Research published in our recent review Whistleblowing: Time for Change found that between 2009 and 2013 around 60% of PIDA claims that reached tribunal were unsuccessful. Over the same period around 40% of claimants were litigants in person, with just 32% succeeding with their claims. The tribunal is often touted as a litigant in person friendly environment but the figures suggest otherwise.
Potential hurdles for whistleblowers extend beyond issues of access to the Employment Tribunal. A disclosure of information does not qualify for protection if the person making the disclosure commits an offence by making it (section 43B(3), Employment Rights Act 1996). You might think this would only apply to a narrow set of circumstances, such as those involving information protected by the Official Secrets Act 1989. In fact, there is a vast array of statutory bars on disclosures (for example, those contained in the Financial Services and Markets Act 2000 and the Utilities Act 2000).
Where a whistleblower is dismissed or subjected to a detriment for raising a concern falling within the ambit of the statutory bar with their employer, they are unable to bring a PIDA claim as they cannot reveal details of their disclosure during civil proceedings. If any public interest disclosures are made, they also face the threat of criminal sanctions.
Public sector whistleblowers can also face arrest and prosecution for the offence of misconduct in public office. In 2009 Christopher Galley blew the whistle on lax security checks in Whitehall to Conservative MP Damian Green. The Home Office informed the police that Galley had damaged national security and both Galley and the MP were arrested on suspicion of misconduct in public office. Neither of the individuals were ultimately charged but their ordeal was hardly an encouraging example to other whistleblowers.
There have been other cases where the CPS has deemed prosecution not to be in the public interest, but only after whistleblowers have endured arrest and interrogation by the police. The hope that the CPS deems prosecution not to be in the public interest will do little to ease a whistleblower’s trepidation at exposing wrongdoing in the public sector. Last year, the Law Commission completed a consultation on misconduct in public office. Their response is awaited with great interest.
It is easy to regard the above problems with a sense of detachment. Do not forget however that one in ten UK workers state that they have had a serious concern about malpractice in the last two years. This suggests potential whistleblowing scenarios are more common than we think. It is not just the individual concerned who is harmed when a whistleblower finds their path to justice blocked. Tales of bad experiences are pervasive and often have more emotional effect than positive stories. This can lead to a culture of fear where there is an unwillingness to speak out. We hear from many individuals with complex legal positions who feel hampered in pursuing their concerns. Whistleblowing concerns are by their very nature issues that can affect the public as a whole. When individuals are discouraged from speaking out it should concern us all.
This article was first published on Practical Law Employment