Whistleblowers & The Law
(We have received permission from Frank Brehany (www.frankbrehany.com – CreatingRipples Podcast™), to reproduce the text and information on this page which was published by him on 25/2/20. It is important to remember that by its very nature, all such text is time sensitive and should not be wholly or in part relied upon as it is very likely to be subject to change. This information is designed to initially discuss the issues and to aid your understanding & research on this matter, before taking any such action to ‘Whistleblow’ Public Interest Information. It does not take the place of formal legal advices. It is important therefore to take heed of this guidance and carry out full research and take appropriate advices before action. If you fail to do so, then you may well lose your rights provided by Law).
I wonder how many of you out there, suddenly finding yourself affected by a personal tragedy or being affected by government or local authority decisions, or experiencing difficulties in finding key information, would hope above hope, that someone would come out of the woodwork and disclose answers to your many unanswered questions?
Now think about the victims or survivors from toxic landfills, exposure to hydrogen cyanide, carbon monoxide poisonings, aircraft suspected not to have been properly certified, toxins within aircraft or ships, crimes on-board cruise ships, bullying in the workplace; do you think that they ever hear from a guardian angel; a whistleblower?
I can tell you, it is rare that they do.
My own experience with whistleblowers, stems from disaffected employees, advising about some failure or deficit found within the holiday companies that once employed them.
The difficulty with receipt of that information is that generally it has concerned a private company with no public role and it has that element of grinding axes!
In those situations, I have had to manage the information received, either through media or political outlets, or directly with the companies themselves, to try and deliver some form of resolution to a particular deficit, simply because the individual refused to follow the legal process of Whistleblowing.
As our world becomes more complex and we race toward deregulation and the attack on Freedom of Information quickens, I thought it would be a good idea to review the issue of Whistleblowing and the legalities that underpin it!
You never know, you may need to understand how Whistleblowers could potentially help you.
What or Who are Whistleblowers?
To begin with, rather than look simply at a legal or government definition (they don’t really inform), what do we mean by a Whistleblower?
Well, in my opinion, a Whistleblower is a person, who through conscience, believes that the information that they have access to, holds a Public importance, either to an individual or society as a whole, and should be disclosed in the Public interest to that individual or to Society, to either right a wrong or to check the activities of the State or indeed a Private Company.
Conscience I think is defined by a deep moral ethic, a sense of what is right or wrong or indeed a strong sense of duty toward Society as a whole, rather than the elected representatives of the State or the Officers or Directors of Company.
Conscience dictates how we interact with each other personally and in times of trouble or where others experience difficulty, it should dictate our actions for the benefit of all.
Whilst it is important to recognise the principal motivator of Whistleblowers, it is equally important to acknowledge the de-motivators.
Inaction of a potential Whistleblower could be based within fear of the Law, fear of isolation, loss of income, pension or other benefits and potentially vilification in the Media. It is important not to understate these de-motivating factors for they provide an effective fog within the logic of our conscience.
The bravery and fortitude of Campaigners, is therefore counter-balanced by the crisis of conscience that Whistleblowers experience; wanting to help their fellow man, but stopped by real fears and concerns.
The question is simply this: ‘How can we seek to persuade Whistleblowers that their actions are protected by Law and how can we help strategise for that desired disclosure?’
What is the Law in the England, Wales & Scotland (Different Provisions apply to Northern Ireland?
I shall begin with the Law. In England, Wales, Scotland (different provisions apply to Northern Ireland), the Law protecting Whistleblowers can be found in the Public Interest Disclosure Act 1998 which provided for amendments within the Employment Rights Act 1996.
It must be said at the very outset, that to be a Whistleblower is bound in a tight process; if you fail to follow process, then you will not be able to benefit from the protections available in Law!
So in considering that important aspect, the Law requires that the disclosure of information must be in the Public Interest.
So for example, a family affected by a toxin-laden landfill whilst potentially benefitting from the Whistleblower’s actions, are not the only potential beneficiaries of disclosed information. Other beneficiaries would also include the family’s neighbours and indeed the wider Society within their neighbourhood. Disclosed information could be argued in this example to have a National importance where other landfills exist close to human habitation.
Disclosures made by Whistleblower’s should reveal either:
That an individual or a group of persons’ health and safety may be in danger;
That there is a risk of or actual damage to the environment;
That there is a miscarriage of Justice;
That a company is breaking the Law, or
Some wrongdoing is being covered up.
Public disclosures of information will not cover personal or workplace grievances, unless of course such grievances are in the Public Interest.
The question then arises for the Whistleblower, as to who they should their express their concerns to?
The Law requires the Whistleblower to make a report initially to their employer.
UK government advices acknowledge that some Companies ‘may’ have a Whistleblowing Policy; I would have expected all government departments and indeed the vast majority of Companies to have such a policy – serious questions would have to be asked if they did not! That said, government advises that the Whistleblower could still report matters to their Company even if they have no ‘Whistleblowing Policy’!
The Law and government advices, also offer that you could also report your concerns when seeking legal advice about the matter, or by consulting a ‘prescribed person or body’.
The government has identified this last category as covering virtually every activity from Health to Environment, Policing to Nuclear, Pensions to Education. The activity is wide but the bodies in question are either government departments or generally regulators. Many Victims, Survivors and Activists will be aware of these bodies, but they offer a route of disclosure for the Whistleblower.
So, any disclosure made by a Whistleblower, must be classed in Law as a ‘qualifying disclosure’, in that the person ‘whistleblowing’ must either:
Make the disclosure to his employer;
Make the disclosure to another person (other than the employer) who they reasonably believe are responsible for a ‘failure’ through their conduct or where they have ‘legal responsibility’ for that other person;
To another person who is not the Whistleblower’s employer, or
Where it is made to a legal advisor in the course of obtaining legal advices;
In certain circumstances, a Whistleblower’s complaint can made made to a Minister of the Crown (rare in most cases), or
To a prescribed person or body, which I have already discussed.
Other considerations for Whistleblowers include:
In making any disclosure, they must reasonably believe that the allegations are substantially true;
That by disclosing such information, they are not going to make any personal gain;
That they believe that they will suffer detriment if they make a disclosure to their employer, or that evidence will be concealed or destroyed, or they have previously disclosed information to their employer, and
Finally, there are a number of other criteria to satisfy, to ensure that it is a ‘Qualifying Disclosure’, such as, who the disclosure was made to, its seriousness, whether failures exist right now or will occur in the future and so on.
The Acts also talk about ‘exceptionally serious failures’, ‘contractual duties of confidentiality’, ‘definitions of ‘worker’ (here it is important to note that ‘workers’ include those in the Public, Private & Voluntary sectors, but not self-employed professionals (except in the NHS), voluntary workers or those who work in the intelligence services). It is also important to acknowledge the extensive protections offered under the Employment Rights Act against having to suffer any form of detriment.
The simple rule is that before making any disclosure, all the issues must be considered by reading these Acts of Parliament and understanding what is required of the Whistleblower.
In all the government advices I have read, they guide potential Whistleblowers who get into difficulty toward ACAS (the Arbitration & Conciliation Service) or to the Employment Tribunal; I have lost count of the number of times that I have spoken to people who have used these service, for serious employment, but less critical matters than Whistleblowing only to be disappointed. Potential Whistleblowers could experience the same disappointment if the issues disclosed are not acted upon in a timely or robust way. This is where it becomes important, vital in fact for the potential Whistleblower to ensure that they have good and robust Trade Union and Legal Representation at the ready!
Whistleblowing & The Media in the England, Wales & Scotland
There is an important aspect to Whistleblowing & the Media that should be considered.
A 2015 UK government advice (Page 9), stated that a ‘worker’ may choose to go to the Media but warns that they would likely lose all of their protections; they advise that only in ‘exceptional circumstances’ would those rights be retained if a ‘worker’ chose to Whistleblow to the Media. The important thing here for any Whistleblower, is to follow process and certainly before any contact with the Media, to make certain that they would fall into the ‘exceptional circumstances’ category – the preservation of their protections must always be paramount.
Whistleblowing & The European Union (EU)
The Law and Whistleblowing is a developing landscape, so I thought it would be a good idea to take a look at a new European Law, passed in December 2019 with the agreement of Member States (the UK abstained) and the European Parliament and Commission.
This new European Law must be implemented by the Member States of the EU by 17 December 2021.
Directive EU 2019/1937 essentially provides for the protection of persons who report breaches of European Law.
The Directive highlights the areas of applicability, extending that already found in some Member States, for example, public procurement, financial services, transport safety and public health (by inference not just to an individual but to larger groups of individuals).
The Directive extends the persons who could be classed as ‘workers’ to include civil servants, those with self employed status, shareholders, non-executive directors, volunteers and paid and unpaid trainees, those working for contractors and sub-contractors.
Importantly it also includes those Whistleblowers who disclose information after their relationship has ended between them and their employer; it also includes those about to start work for an employer who have received information as part of their pre-work-information. The new Directive also supports those who support the Whistleblower!
The new Law obligates companies or bodies with 50 or more employees, councils and municipalities (though there is an opt-out where there are less than 10,000 residents), to create secure reporting channels so that the Whistleblower can follow their obligations by bringing the breaches to the attention of the employer before further action is taken.
In a similar fashion, the State will be required to set up secure reporting channels that are independent and autonomous, whereas company reporting channels must be operated in a secure manner that ensures confidentiality by an impartial person or department.
The Directive provides for comprehensive protections, for example, prohibition of retaliation, measures to support the Whistleblower, measures to protect against retaliation and penalties.
The Media & EU Whistleblowing Law
Importantly, protected disclosures will be capable of being made to the Media where no action has been taken by the reporting channels or where an imminent or clear danger exists to the wider Public Interest or where irreversible damage could occur.
Like UK Law, the European Directive is all about process, so any potential Whistleblower will need to ensure that they follow this process to the letter!
EU Whistleblowing Law & Brexit!
There is however, just one aspect of concern and that concern is Brexit!
Yes, it’s that old chestnut which cannot escape scrutiny even when it comes to Whistleblowing!
The €64,000 question here is: ‘Will the UK implement the provisions of this EU Directive into UK Law by the end of 2021 or will that too become subject to a bonfire of ‘regulation’?’.
It does seem that the UK has already decided not to implement the provisions of the Directive because of fears of proportionality and the fact that the UK was leaving the EU. They make the point that they will continue to protect Whistleblowers and intend to bring legislation to limit the power of Non-Disclosure Agreements (NDAs) to stop Whistleblowing activity.
However, as with all things Brexit, things could change and what was once deemed off the table could return in favour of a Trade Agreement with the EU! In fact it is likely that UK Citizens will continue to work for EU Companies and if that is the case, they would be expected to comply with this new Law, thereby protecting European Regulation and the operation of the Single Market!
Tactics & Strategy for the Whistleblower
So how does a potential Whistleblower make sense of all of this?
It depends if the Whistleblower’s intent is to inform Society at large or whether they are seeking to help an individual, a small group of individuals or pockets of individuals with similar interests!
If we take the first intent, it seems that the answer is relatively easy. Read the UK Laws, understand the process, understand your obligations, seek Trade Union views on your intended actions and I would suggest, belt and brace that with formal legal advice, before you take any action!
If the Whistleblower’s intent covers the specific classes of people I have identified, then perhaps a more structured approach is required, for example:
What has created the desire to make a Public Disclosure – what are your motivations?
Are you able to prove through disclosure, why laws may be broken, or actions are wrong, or that there is a risk to public health, or that you have a fear that documentation is being concealed or may be destroyed?
It is at this stage that I would suggest that the potential Whistleblower seek out an Independent Third Party, such as Protect, to discuss the issues, concerns and take their advices;
It is probably at this stage that those represented by Trade Unions could seek their guidance, before action, and following advices from the Trade Union and/or Protect, this should almost certainly be followed up seeking initial formal legal advices;
It is then and only then that any potential Whistleblower should act and they should do so according to the letter of the Law (checking in particular for any enhanced Rights stemming from the new European Laws – not forgetting their Human Rights as set out in the European Convention on Human Rights!) and ensure that they follow all the advices or representation they have;
Above all, they should keep a diary from Day One, from their consideration of the matter, advices received and through to disclosure and record everything said or done to them – this will be vital if they should suffer personal detriment or victimisation!
This is not an easy path for any Whistleblower to tread, but laws exist to protect the Whistleblower. Those Laws are complex and for some they may be difficult to follow, but understanding what protection or process exists before making a public disclosure, will ultimately place you in joint control of the agenda rather than reacting to events.
If Whistleblowers take the structured approaches I suggest and follow process, this will ultimately benefit those who need key information; they may achieve the Justice they are seeking, thanks to the brave individuals who take this action!
(Other sources of help: