Whistleblowing - Employment, Labour & Equalities update

Siobhan Bishop: Hello, I'm Siobhan Bishop and I'm talking today with Martin Chitty, a partner in our Employment, Labour & Equalities Team, about the changes we're seeing in the field of whistleblowing.

Martin, what's the current landscape as far as whistleblowing goes?

Martin Chitty: Well, it's a very interesting point Siobhan. The current legislation has been in place since 2013. We're starting to see some cases coming through which are resulting in developments in the law which weren't quite expected. We're seeing a greater interest in disclosure to authorised persons, so regulatory bodies and the like, and I think over the next couple of years we're going to see some significant changes in the case law and the whole landscape in relation to whistleblowing.

Siobhan: So, a whistleblower won't be protected in every case. What kind of disclosure do they need to make to gain that protection?

Martin: That's right, not every person who makes a disclosure is going to be protected. There are various elements to the test which they've got to satisfy. The first part is they've got to identify that what they're reporting comes from a quite limited list of issues. It has to relate, for instance, to some illegality or a breach of a legal obligation or a health and safety issue. So, if they haven't got something from that list then they're not going to be in the whistleblowing space at all.

So, the second element of that test is that the individual has to make a disclosure of information. Now, the important part there is to focus on what information is. Simply making an allegation, for instance "this hospital is dirty" is not sufficient, they need information about which part of the hospital is dirty, where should the authorities go to look for the problem that this person is identifying? 

So, simply saying there is a problem is not adequate. In the same way, somebody going along and saying "I am collecting information about this" is not going to be enough, because they haven't actually disclosed what it is that they are collecting or collating and putting together.

So, there is quite a high threshold from the individual's point of view. Interestingly though, the case law on this has taken a bit of a diversion of late. The courts initially were quite restricted in their approach about the difference between information on the one hand and allegations on the other, but the more recent decisions indicate that, actually, they are not going to be quite that hard-line going forward, that they are prepared to accept that, well, there's a fine line between information and allegations and sometimes the two are inextricably linked. So, I think we can see a certain more liberal approach from the tribunals from that point of view.

Siobhan: And what about this public interest test, how does that work in reality?

Martin: The public interest test was brought in in 2013 to try and deal with the fact that one of the list of whistleblowing issues, the protected disclosure if you like, was about the breach of a legal obligation and it was always assumed, until a case involving Sodexo, that it couldn't include a breach of employer's obligations to its employees in their contract.

But the Sodexo case said, no, that's a breach of a legal obligation. So, to try and limit that, the law was changed so that any disclosure had to be in the public interest and what we've seen is quite contrary to the expectation when the legislation came in.

And where we've got to is this: that in different cases, over the last two years, we've seen that public interest test applied firstly to a group of a hundred people, that the disclosure of a breach of their legal entitlements was in the public interest, and then narrowed down to a much smaller group of only four people in another case, and most recently, in the last couple of months, a case involving a disclosure by one person of an issue to do with their working conditions and, because of the nature of their employer, which happened to be a charity, publicly funded by donation, it was felt that this public interest test could be met, not would be, but could be, met, and that's not really what the law was expected to do.

It was expected to close the door on those sorts of issues, rather than in fact opening the door wide open. We're almost exactly where we were before, three years on, and that may prompt some further review of the legislation.

Siobhan: Another area where we are seeing some developments is the increased importance of external bodies. Can you tell us some more about that?

Martin: Yes, with certain aspects of whistleblowing, if an individual for instance can say, well, I think my employer is going to react so badly to this if I disclose it, they can go externally, but there is a much higher threshold there.

So, for instance, if somebody believes that their employer is involved in financial trading and is acting wrongfully or against market rules, then they could disclose that direct to the regulatory body.

We are seeing some interest in this, I know from talking to National Audit Office and organisations like that, they are seeing many more things coming through, it's forming a higher part of their workload. There is a heightened protection for individuals in that case, but there is also a heightened threshold in terms of the nature of disclosure and it certainly mustn't be done for personal gain.

Siobhan: Well thank you very much Martin.