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).
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.
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 UK?
I shall begin with the Law. In the UK, 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:
The question then arises for the Whistleblower, as to who they should 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:
Other considerations for Whistleblowers include:
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 UK
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.
The new Directive also supports those who support the Whistleblower!
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
Protected disclosures can be made to the Media where an imminent or clear danger exists to the wider Public Interest or where irreversible damage could occur.
Tactics & Strategy for the Whistleblower
In Zane's case contact [email protected] in confidence
Concluding thoughts
Laws exist to protect the Whistleblower.
Whistleblowers 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:
https://www.gov.uk/whistleblowing
https://www.gov.uk/government/publications/the-public-interest-disclosure-act/the-public-interest-disclosure-act
https://archive.acas.org.uk/index.aspx?articleid=1919
https://www.citizensadvice.org.uk/work/problems-at-work/employment-tribunals-from-29-july-2013/making-an-employment-tribunal-claim-is-it-worth-it/employment-tribunals-automatic-unfair-dismissal/employment-tribunals-automatic-unfair-dismissal-whistleblowing/
https://solicitors.lawsociety.org.uk)
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.
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 UK?
I shall begin with the Law. In the UK, 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:
- Criminal Offences;
- 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.
The question then arises for the Whistleblower, as to who they should 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 UK
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.
The new Directive also supports those who support the Whistleblower!
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
Protected disclosures can be made to the Media where an imminent or clear danger exists to the wider Public Interest or where irreversible damage could occur.
Tactics & Strategy for the Whistleblower
In Zane's case contact [email protected] in confidence
Concluding thoughts
Laws exist to protect the Whistleblower.
Whistleblowers 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:
https://www.gov.uk/whistleblowing
https://www.gov.uk/government/publications/the-public-interest-disclosure-act/the-public-interest-disclosure-act
https://archive.acas.org.uk/index.aspx?articleid=1919
https://www.citizensadvice.org.uk/work/problems-at-work/employment-tribunals-from-29-july-2013/making-an-employment-tribunal-claim-is-it-worth-it/employment-tribunals-automatic-unfair-dismissal/employment-tribunals-automatic-unfair-dismissal-whistleblowing/
https://solicitors.lawsociety.org.uk)