COVID-19 has drastically changed the way in which we work. Government guidance has led to the temporary closure of a number of businesses while others have been tasked with finding quick and effective ways to ensure that staff are able to work from home where possible and that business can continue as usual.
For organisations employing key workers, there is now a heightened need for services to be delivered safely. We know from our Advice Line that this time of public emergency is giving rise to new concerns about keeping patients, customers and colleagues safe. Staff need to feel supported, valued, and looked after.
The way in which we work may have changed, but the need for workers to be able to raise concerns when things go wrong has not. Whistleblowing is an organisation’s best early-warning system and now more than ever organisations should ensure that staff feel safe and supported when they speak up and that issues are properly investigated and resolved.
Organisations should consider the following steps to ensure that staff can blow the whistle properly:
- Building a positive speak up culture: While homeworking (for those able to work remotely) may present physical barriers to staff raising concerns you need to make sure that these do not prevent staff from raising concerns. Employers who have staff working from home should make sure that managers regularly touch base with staff and encourage them to raise any concerns that they have and make sure that managers are equally accessible to staff during working hours (via phone, email or video). Encourage your senior leaders to lead by example and drive this cultural shift by championing a good speak up culture.
- Update your whistleblowing policy: Now is a perfect time to review and update your whistleblowing policy to make sure that it complies with legal, regulatory and industrial developments. Make sure you provide a number of clear channels for staff to raise their concerns (including the names and contact details of key contacts) and ensure that your policy is in plain English and easily accessible online.
- Test staff attitudes to whistleblowing: Organisations should make sure that they proactively engage with staff and ensure staff are aware of how and where to blow the whistle. Staff need to have trust and confidence in their organisation’s ability to handle their concerns. Why not take the time to test your organisation’s culture through online staff surveys, focus groups or listening exercises – all of which can be delivered remotely.
- Train your staff : While training staff face-to-face may be difficult, e-learning and video conferencing make it possible to train staff even when they’re working remotely. Make sure that all staff across your organisation understand what whistleblowing is; how and where to raise and escalate concerns, the difference between whistleblowing and grievances and where they can get independent advice as a whistleblower. Make sure that managers listed within your whistleblowing policy are trained on their role and responsibilities. You may want to develop FAQs for managers which explains how they should handle the confidentiality and victimisation of whistleblower.
These are difficult and uncertain times, and a strong message that you value your staff and are listening to their concerns will help to protect you, your staff and the general public.
Written by Hari Raithatha, a Senior Adviser on our Advice Line. Hari works closely with Protect’s Training and Consultancy team to help organisations meet whistleblowing best practice. He has qualified as a solicitor with Protect in 2020.
Gagging clauses have become quite the talking point thanks partly due to the Harvey Weinstein scandal and the #MeToo era and countless other news stories exposing their misuse. Controversial debate around the use of gagging clauses, or NDAs (non-disclosure agreements) and financial settlements to conceal sexual assault and harassment has tarnished the image of NDAs and highlighted their harmful impact of encouraging a culture of silence in cases of serious misconduct.
NDAs, sometimes referred to as confidentiality clauses or “gagging clauses” are written into a contract to stop information being disclosed. They serve a useful and legitimate role in employment contracts and settlement agreements. They protect commercially sensitive information and prevent employees sharing this information with their competitors.
However, there is increasing evidence these gagging clauses are being used unethically by some employers to intimidate whistleblowers, silence victims of harassment and discrimination, and conceal wrongdoing in the workplace.
But there are limitations to what can legally be ‘gagged’ by NDAs, which workers are often unaware of.
The current law on whistleblowing states any agreement which prevents a worker from whistleblowing, or making a protected disclosure is void ( s43J Public Interest Disclosure Act, PIDA, 1998,) but s43J has been hotly debated. NDA wording is often vague and contains no clear guidance as to how confidentiality clauses should be used and to what extent they should highlight the worker’s rights.
Protect has long been calling for NDA reform. A key ask in our Draft Whistleblowing Bill to reform PIDA is NDA reform. We want to see stronger and clearer wording to prevent the use of gagging clauses and a guarantee whistleblowers faced with a settlement agreement will get legal advice on any non-disclosure clauses.
A Government Consultation March-April 2019 by BEIS (Department for Business, Energy & Industrial Strategy) concluded clauses being used to silence and intimidate victims of harassment and discrimination cannot be tolerated. Almost half (48%) of respondents had seen an example of a confidentiality clause that attempted to cloud a worker’s right to make a protected disclosure or overstretch the extent to which the information is confidential. The Consultation stated that it is important that workers understand their rights when they sign a confidentiality clause so they are not misled that they cannot disclose certain information. 83% of respondents agreed that confidentiality clauses should clearly highlight the disclosures that are not prohibited.
Protect suggested the following reforms to the law:
- an exclusion in any NDA allowing for the disclosure of information about workplace harassment or discrimination to a regulator - not just the police - so wrongdoing that falls short of criminal conduct can be investigated and individuals held to account
- improved advice for all employees: there is a very low awareness of employment rights around whistleblowing, as well as discrimination and harassment, and obscure wording around settlement agreements does not aid understanding• a standard document to be handed to all employees who sign a settlement agreement, explaining the limits of all confidentiality clauses in non-legalistic language
In our Draft Bill we address the lack of clarity of gagging clauses in settlement agreements by proposing clearer wording for s43J:
‘No agreement made before, during or after employment between an individual and an employer may preclude that individual from making a protected disclosure.’
Additional to this clearer wording is that any settlement agreement involving whistleblowing will have a clear statement saying that nothing in the agreement can stop the individual escalating the concerns, and certificate from an independent legal advisor explaining the requirements and limitations of the confidentiality clause.
We believe these provisions will make a whistleblower’s rights and responsibilities under a settlement agreement much clearer.
Blog written by Rhiannon Plimmer-Craig
Academics, journalists, whistleblowers, advocates and members of the public gathered at The Shard for an event hosted by Warwick Business School recently to discuss the hurdles they faced in their own journeys and recent trends in whistleblowing.
Protect’s Policy Officer, Laura Fatah, attended the event arranged by academics Marianna Fotaki and Iain Munro (www.whistleblowingimpact.com) with special guest Katharine Gun. Katharine was a translator based at British intelligence agency, GCHQ, who raised concerns in 2003 over a US plot to spy on the United Nations diplomats to ‘give the Americans an edge’ in their attempts to persuade the Council to go to war with Iraq.
Katharine Gun & Official Secrets
Gun knew this wasn’t right on three counts: GCHQ was being used for political means; the aim was to achieve war, and the diplomatic processes of the UN were being corrupted. She had also privately conducted her own research; and found “no reasonable reason” for the planned invasion. However – she was bound by the Official Secrets Act.
A lack of internal options lead Gun to conclude she had no option but to go against all her training and contact the media. Her whistleblowing has been made into the recent film ‘Official Secrets’.
Although the two states of the UK and the US eventually did go to war – they did so without approval of the UN, and amid international disapproval. Katharine Gun will be remembered for revealing to the world the underhand tactics of the US and UK.
The ‘public interest’ and who decides what this is was a key discussion point throughout the event at the Shard. Gun noted that the public interest defence, as used by the jury to successfully dismiss the case against Clive Ponting (who blew the whistle on the sinking of the Belgrano during the Falklands War), is no longer part of the Official Secrets Act. The public jury in that case clearly wanted to respect the societal value of the information that Ponting revealed, despite its confidential nature.
Mark Curtis, Editor of Declassified UK, spoke about the continued use of covert and potentially unlawful tactics the UK state still employs. He referred to cases when the UK is seen supporting the military operations of countries who have been found to be in breach of international law, such as the continued Saudi Arabian military assault of Yemen, the Israeli government’s illegal occupation of Palestinian land, and the US drone programme in Syria, Pakistan, and Afghanistan. Curtis highlights the particular difficulty whistleblowers face when raising concerns about the actions of their own government, as opposed to the vast majority of whistleblowers who raise concerns about malpractice or wrong doing in non-governmental institutions.
Trends in Whistleblowing
Academic Iain Munro gave a brilliant summary of his recent work exploring trends in whistleblowing, and how the modern whistleblower is often supported by a network – without which they could not be effective. Members of the network include lawyers, journalists, confidants, advocates and translators. The use of technology was also discussed, and how best this can be used to securely share source material; technology has enabled the open source sharing of data with journalists and members of the global public. There is room for a genuine debate over the role of redaction in various forms of networked whistleblowing, but there is little doubt that it has played a huge role in stimulating public debate over issues including the legitimacy of recent wars, the 2008 financial crisis, offshore tax evasion and global mass surveillance.
Dave Lewis, of Middlesex University, explored the idea of pro-active protection for whistleblowers, including a protected status parallel to that of pregnant women in employment. However, this would naturally require the sacrifice of confidentiality. Ian Foxley spoke of his own ordeal, which is still on going, and how whistleblowers might learn ‘survival techniques’ from other human rights defenders. There was agreement that whistleblowers are faced with an overwhelming psychological toll and often need support.
It was a fascinating event with many interesting points put across by both whistleblowers and academics. Protect look forward to discussing the issues raised and our campaign for a new law for whistleblowing with all the delegates.
By Laura Fatah
Protect and law firm Howard Kennedy joined forces for a successful secondment, offering a three-month secondment to Protect’s trainee solicitor, Hari Raithatha, and Howard Kennedy’s trainee solicitor, Diarra Brown. So, how did they get on, and what did they both learn?
Qu: What did you do, and what did you learn?
Hari: Being at Howard Kennedy gave me a real insight into how employment law issues impact organisations on a daily basis. While working in the employment team I worked on a real mix of issues including advising on the employment issues in the acquisition of company and also advising on a disability discrimination matter as part of the firms Pro Bono program.
Diarra: To be proactive and to put yourself forward this is very much appreciated especially in an organisation like Protect. Taking the time to listen and show empathy can drastically improve someone’s outlook.
Qu: Was it what you expected, did anything surprise you?
Hari: I was really surprised by the mix of issues that the employment team would be involved with at any one time. Nothing could have prepared me for the challenge of putting case bundle together!!!
Diarra: I didn’t know what to expect from the secondment and went into it with an open mind. What suprised me, was the amount of challenging calls the advice line receives. The variety of concerns raised and the fact that calls can come from senior managers and HR. As an advisor you need to ensure that you are as equipped to deal with this.
Qu: What were the challenges?
Hari: Having to constantly think on your feet and get up to speed with a number of different areas of law in a short period of time.
Diarra: Learning everyone’s names… I would have to say getting used to a completely different environment in a short space of time, but it was good to try a new way of working.
Qu: Would you recommend the experience and what we’re your takeaways?
Hari: Absolutely! Working at Howard Kennedy has really opened my eyes to how dynamic and constantly changing employment law is. It has been great to have gained an insight into this. It’s shown me the value of providing clear, practical solutions to clients, which I’m really keen to develop in my work at Protect training businesses and advising whistleblowers. Visiting the Employment Tribunal and Employment Appeals Tribunal with Counsel (while daunting!) has really helped me understand some of the issues faced by litigants in person when presenting cases.
Diarra: Yes, I’d recommend the experience, as I got as much as I put in and put my hand up for everything! I think this was appreciated. My takeaway was never underestimate how valuable your input can be. Especially to a whistleblower in the midst of a challenging work situation.
Qu: What will you miss?
Hari: The weekly lunch and learn sessions with the other corporate trainees and the amazing office. And also working round the corner from Borough Market! But I’ll miss some of the great people I met – but hope to stay in touch with them!
Diarra: The people without a doubt.
I joined Protect as a volunteer just after I finished my Legal Practice Course and although I had only a basic grasp of aspects of employment law, Protect’s work really appealed to me.
Summarising Employment Tribunal judgments and highlighting the relevant discussions of the Public Interest Disclosure Act seemed daunting at first, but after an informative induction and feedback on a few initial case summaries, I felt much more confident pulling out and writing up the relevant points for use by Protect’s advisers. I have learnt so much over the last six months, seeing the legal challenges from the perspectives of both the whistleblower and the employer. As well as becoming familiar with the legal tests applying to whistleblower protection, I also attended internal meetings and took part in training sessions on whistleblowing law.
Having spent six months at Protect, I have now come to the end of my time here and am moving to a specialist corporate law firm in the City, Lewis Townsend LLP to continue my legal career.
The people at Protect have been inspiring for their commitment and empathy towards whistleblowers and I am so sad to be leaving. I will continue to recommend Protect as a fantastic and rewarding volunteering opportunity and can only hope the charity and its work receives the support it deserves.
By Protect volunteer Jo Cousins
Research around whistleblowing claims under whistle blowing law, the the Public Interest Disclosure Act 1998 (PIDA) being brought before the employment tribunals point to a worrying figure of a 3% success rate.
Discrimination cases also fare as badly, with age discrimination cases being even lower at 1%. Overall, employment tribunal actions have a success rate of below 40%, with the highest being for redundancy claims at 39%. However, the majority of claims remain remarkably under 10%. 
But this 3% must be put into context.
PIDA suffers like all other employment tribunal claims due to the lack of legal support provided to individuals, which is part of a wider problem regarding access to justice in employment law, perpetuated by legal aid cuts.
With no current extension of legal aid to employment law cases (aside from discrimination cases), this may be one of the reasons to blame for this stark figure, which surely discourages claimants from pursuing whistleblowing claims to tribunal.
High legal costs mean whistleblowers relying on enforcing their rights under PIDA, are either left to take on this financial burden or left with no choice but to represent themselves in person. This leaves claimants vulnerable to employers who who have legal representation armed with a team of lawyers, due to the reputational risk involved in public interest cases.
The figures clearly speak for themselves.
From our research 40% of claimants were self-represented compared to the 44% who had legal representation. However, 68% of these claimants lost compared to the 53% who were represented. This disparity means that whistleblowers are bearing the brunt of a regime which puts unrepresented claimants at a disadvantage making them less likely to succeed.
It is also becoming all too common for respondents to use costs warnings as an aggressive tool against whistleblowers to either withdraw or settle claims before going to a full hearing. Protect are in communication with the Solicitors Regulation Authority on this matter.
Settlements must also be considered when looking at this 3% statistic. In 2018/19, 31% of PIDA claims were settled through ACAS Early Conciliation. This suggests that it also may be the case that many good claims are settled before seeing a full run at the tribunal, with poorer cases, especially with no legal support left to battle through without much success. What we don’t know is how many of settled cases have access to early legal advice- there is no available data from the Government or elsewhere on this point.
Protect’s Whistleblowing Bill which is arguing for new legislation – will put whistleblowing rights on the same footing as discrimination to qualify for legal aid. This offers a more robust framework for legal aid that goes further than the EU Directive – breaking down barriers to justice, and providing further protection and support for whistleblowers to come forward in raising vital public interest concerns.
By Protect Adviser Burcak Dikmen
Today’s Queen’s Speech sees the UK Government commit through an Employment Bill to: ‘Protect and enhance workers’ rights as the UK leaves the EU, making Britain the best place in the world to work’.
Details on what this will mean in practice are in short supply, and that includes what the future holds for reform to whistleblowing rights. Butf or the Government to realise the commitment of ‘making Britain the best place in the world to work ’ reforming the legal protection for whistleblowers is essential.
Whistleblowing protection in the UK stands at cross-roads.
Lauded as the gold standard of protection laws, much has changed since the Public Interest Disclosure Act (PIDA) was introduced in 1998. New laws in Ireland, Australia and now the recently passed EU Directive highlight how whistleblowing rights in the UK are starting to fall behind internationally. The world of work, including the needs of whistleblowers, has moved on since 1998 and PIDA has not kept pace.
A failure to reform PIDA will impact on individual whistleblowers in the workplace, and their ability to seek compensation if they are victimised, dismissed or forced out of their job. Inadequate legal protection is a problem for us all – and may deter future whistleblowing disclosures.
The Queen’s Speech makes one concrete commitment: the creation on a Single Enforcement Body which is a new regulator tasked with protecting workers’ employment rights and ensuring that exploitation of workers is deterred.
We welcome this proposal.
Earlier in the year we contributed to the consultation on creating this body, pointing out that like all regulators, the Single Enforcement Body will need to rely on the information provided by whistleblowers. With this in mind we argued the body should be prescribed under PIDA as a regulator bolstering the legal protection for whistleblowers when they raise concerns with this body.
For the Government to ensure UK whistleblowing rights keeps pace with developments internationally, PIDA will need to be reformed in these key areas:
- Extending the scope of the law to include all those who raise concerns in a work-related context. This would allow volunteers, those in appointed positions and others to rely on legal protections if they are victimized for raising concerns.
- Increasing the range of disclosures which will qualify for protection to include gross waste or mismanagement of public funds and breaches of the employer’s policies and behaviour which can adversely affect the employer’s reputation or financial stability.
- Setting whistleblowing standards for employers to follow. Currently, outside of health and financial services, few employers face any requirements to have policies and procedures in place. Protect would like to see the introduction of specific mandatory arrangements to ensure that employers are dealing with whistleblowing concerns effectively, and a positive duty on employers to prevent victimisation.
- Providing protection to individuals who raise concerns with their trade unions representatives.
- Setting standards for prescribed persons (BEIS recognised regulators) to promote a consistency of approach in handling whistleblowing concerns across Britain’s range of industries.
- Increased clarity around settlement agreements and gagging clauses.
- Providing legal protection to those who are mistakenly identified as a whistleblower, or who may be considering a future disclosure.
- The introduction of an Independent Whistleblowing Commissioner, to investigate where concerns have been mishandled, set standards for employers and prescribed persons, improve public awareness and impose fines on employers or regulators for breaches of standards.
- Increasing the time limit individuals have to bring a claim in the Employment Tribunal.
- Introducing legal aid for claimants in whistleblowing cases.
By Head of Policy, Andrew Pepper-Parsons
Head of Policy at Protect, Andrew Pepper-Parsons spoke at the National Guardian Office Pan Sector Conference on our recent work with regulators and professional bodies, the aim of which is to explore the challenges and opportunities these bodies have when receiving whistleblowing concerns, and in particular in handling and responding to the individual raising the concern.
The NGO, which supports positive cultural change across the NHS through supporting a network of Freedom to Speak Up Guardians, arranged and hosted the event with delegates from a diverse industries to and industries to talk about the Public Interest Disclosure Act 1998.
Other speakers included academic Wim Vandekerckhove who presented a report of the findings from whistleblower research in Australia, one of which demonstrated the positive impact of carrying out a risk assessment at the point of disclosure, and how this can benefit both the whistleblower and the employer, in addition to reducing the impact of stress on the employee.
Sean Parker from the Civil Aviation Authority spoke about how the CAA had used its statutory statement of purpose to resist Freedom of Information requests made by the media. This prevented information given in confidence by whistleblowers being exploited for commercial benefit, where this would not improve flight safety. GDPR has stipulated the information only be used or the purpose that it was given, so if the media is unable to confirm how it will use these disclosures to improve flight safety, the regulator can resist this request.
Protect Chief Executive Francesca West will be speaking at the International Development Safeguarding Conference on December 12 on the importance of whistleblowing and speaking up in the Third Sector, and what needs to change in the sector since the Oxfam scandal.
The International Development Safeguarding Conference will offer a leading platform to assess the progress made to date around improving safeguarding practices and discuss next steps in strengthening policies and approaches towards abuse and misconduct.
Participants will gain the latest practical and policy updates from key sector leaders about the collaborative steps being taken to address and prevent incidents of misconduct, and negligence around these, across the development and humanitarian aid sectors.