Whistleblowing: The British Way

November 30th, 2018 by Pamela Coyle Brecht

What Happened?

In seeking to limit the abuse of whistleblower legislation, the United Kingdom enacted the Enterprise and Regulatory Reform Act of 2013, which amended the Public Interest Disclosure Act of 1998, and mandated that all disclosures of misconduct be made in the “public interest.”

The Background

In 1998, the United Kingdom became one of the first jurisdictions in the European Union to implement its own set of whistleblower protections with the Public Interest Disclosure Act (PIDA). Under the PIDA, a whistleblower had to make a qualified and protected disclosure in good faith to be considered a whistleblower and therefore receive protection under the Act. A disclosure is considered qualified when it concerns one of the following subject matters: a criminal offense, breach of legal obligation, miscarriage of justice, danger to any individual’s health or safety, damage to the environment, or a deliberate concealment of any of the aforementioned matters. A disclosure is considered protected when it is made to the appropriate party. However, as more disclosures were made, Parliament realized the PIDA contained a loophole that enabled individuals to bring claims of a private nature under the Act.

The Motivation of Parliament

Parliament discovered that individuals were raising concerns about their personal employment contracts under the PIDA. Individuals were able to satisfy the elements of a qualified disclosure by raising their concerns under the “breach of legal obligation” prong of the Act. Clearly, this was not Parliament’s intent when they enacted the PIDA and was a blatant misuse of whistleblower laws. To correct this misapplication of whistleblower protection, Parliament enacted the Enterprise and Regulatory Reform Act of 2013 (ERRA) that amended the PIDA so that a whistleblower will only be protected for disclosures deemed to be made in the “public interest.”

Who Can Be A Whistleblower Under the British Law?

In order to be considered a whistleblower and eligible for whistleblower protection, a whistleblower must make a qualified and protected disclosure in the “public interest.” As stated above, a disclosure is qualified and protected when it regards one of the six aforementioned subject matters and when it is made to the correct party. The ERRA does not define the term “public interest.” When a whistleblower reasonably believes the disclosure is being made in the “public interest” the whistleblower will be entitled to protection even if the disclosure is not found to be in the “public interest.”

What Protections Can A Whistleblower Receive?

In the United Kingdom, whistleblower protection extends to trainees, temporary employees, employees, consultants, and suppliers. However, a whistleblower who is not an employee is not afforded the same protection as a whistleblower who is an employee. A whistleblowing employee is protected from unfair dismissal and detrimental treatment, whereas a whistleblowing nonemployee is only protected from detrimental treatment.

A whistleblowing employee is presumed to be unfairly dismissed if their disclosure was the cause of their dismissal. When hearing a complaint of unfair dismissal, an employment tribunal can order reinstatement or compensation of the whistleblowing employee. In addition, an unfair dismissal claim for a whistleblowing employee is not subject to the statutory cap that normally applies to damages in a standard unfair dismissal claim. Further, an employment tribunal can also offer interim relief to a whistleblowing employee if the tribunal finds that the whistleblowing employee is likely to win the unfair dismissal case.

How Does One Blow The Whistle In The United Kingdom

A whistleblower must disclose misconduct in the correct manner and to the correct party in order to be considered a whistleblower and receive whistleblower protection. A whistleblower may disclose misconduct to their employer, in accordance with their employer’s whistleblowing procedures, or to a prescribed person. A prescribed person is an outside party, set by the Secretary of State, and named in the PIDA. In certain instances, the PIDA does permit a whistleblower to disclose misconduct to other parties such as the media. However, the disclosure will only be eligible for protection if an employment tribunal determines that the disclosure was reasonable at the time it was made.

The Take Away

When comparing American whistleblowing laws to those in the United Kingdom, the countries’ differentiating perceptions of whistleblowers are instantly discernable. The United States focuses on the protections and the rewards whistleblowers are entitled to receive for the risks they take when coming forward. The United Kingdom focuses on the elements whistleblowers must establish in order to be considered a whistleblower and receive protection under the law. The United Kingdom further distinguishes itself from the United States by not offering a financial reward to whistleblowers out of the fear that it would corrupt the whistleblowing process with greed. Similar to France and Italy, the United Kingdom seems to automatically distrust whistleblowers and be more concerned with their motive than with pursuing their concerns of misconduct.

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