The main UK law that protects whistleblowers is failing, according to an independent commission established by the charity that helped draft the statute 15 years ago.
The group, which was set up by the charity Public Concern at Work, urged the government to widen the scope of those who are protected under the Public Interest Disclosure Act, which provides legal remedies for employees who have been victimised or let go for drawing attention to abuses.
The commission also called on regulators to require companies and institutions to put effective whistleblower protection arrangements in place.
In most of the reviewed cases where early detection could have stopped serious societal harm, the commission found that “individuals did speak out, but were not listened to and no actions were taken. Many of these people suffered serious personal detriment”.
“The vast majority of respondents to our consultation thought that PIDA is not working as intended,” the commission said.
But its report stopped short of calling for new laws to make better protection of whistleblowing mandatory. The group also failed to find ways to halt the use of gagging orders intended to silence whistleblowers when a settlement over their treatment is reached, lawyers and whistleblowers said.
Simon Rice-Birchall, a partner at Eversheds, the law firm, said the commission could have made it an offence for companies to try to gag somebody “who reasonably believes he is making a protected disclosure [by raising a legitimate and serious concern].”
One of the big problems for serious whistleblowers whose warnings have been ignored by their employers is that employment tribunals deal with the treatment of the messenger, rather than the message, whether it be of misconduct by banks or within hospitals.
At the end of the process, whistleblowers are often offered a settlement in return for their silence. Few realise that such an agreement is not legally binding.
Kim Holt, a paediatrician who says she was twice offered settlements to keep quiet about her warnings a child could die because of the chaos and skeletal staffing at a Haringey clinic, said the tribunal system was so unhelpful in her case and others like it that she wanted “nothing to do with the law.”
Michael Woodford, who exposed wrongdoing at Olympus, and was part of the commission established by Public Concern at Work, said that at companies, non-executive directors should be made responsible for overseeing whistleblowing claims.
Following outrage at how many whistleblowers’ warnings were unheeded ahead of the financial crisis and the serious problems within the NHS and at care homes for the elderly and vulnerable, the government also decided to look at the treatment of whistleblowers. Its report is due to be published next year.
Paul Moore, who warned the board of HBOS about the lender’s risky practices, but was fired and ignored until it was too late and HBOS needed to be bailed out, said: “Our policy has to be designed for the bad companies, not the good ones.”
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