Hands up all those who knew that proposals had been put to the Government to make material changes to the whistleblowing legislation?
The Whistleblowing Commission, a panel of individuals with experience and expertise in both “sides” of the whistleblowing debate, has compiled 25 recommendations of varying degrees of practical significance in relation to public interest disclosures. Given the current climate in relation to the covering up of public sector or corporate wrongdoing, it has to be anticipated that many of these may make it into law. Here are our views on the principal conclusions reached by the Commission:
1. First, that there should be a Whistleblowing Code of Practice akin to the Acas Codes, in the sense that it would not be legally binding but could be taken into account by an Employment Tribunal where relevant. This sounds initially like yet another layer of bureaucracy, especially bearing in mind that the thrust of the original Public Interest Disclosure Act was not necessarily that the disclosure had to be addressed, but simply that the person making it should not be penalised for doing so. That said, the draft Code suggested by the Commission is for the most part actually pretty sensible as an exercise in procedural expectation management for both the employee and the manager to whom the disclosure is made. However, it does contain a prospectively rather dispiriting requirement that the employer should conduct periodic and wide-ranging audits of its whistleblowing practices, which we would think would be seen as a bridge too far by all but the most sophisticated employers. In addition, perhaps regrettably, the draft Code contains no reminder to the employee that disclosures made without genuine or reasonable belief in their truth could constitute misconduct and lead to a perfectly lawful dismissal. This is unsurprising – the Commission was set up by Public Concern at Work, the whistleblowing charity – but perhaps fails to recognise that the whistleblowing legislation is undoubtedly abused from time to time by employees seeking protection against dismissal or detriment for other reasons.
2. The Commission recommends an extension of the categories of wrongdoing which can be the proper subject of a protected disclosure, first by making them non-exhaustive, and second by adding “gross waste or mismanagement of funds” and “serious misuse of authority”. Even bearing in mind the public interest component required, these are potentially very wide indeed – who at one time or another has not thought either or both of these about his employer? – and the Commission has sensibly invited drafting suggestions to narrow their scope.
3. Last of our key recommendations, the Commission would like to remove the distinction drawn in Cavendish Munro –v- Geduld in 2010 between mere allegation (“You are in breach of the Health & Safety legislation”) which is not a protected disclosure) and a genuine disclosure (“The workplace fridges contain life-forms which are now potentially lethal”), which would certainly be protected. The Commission’s fear is that the line is not always so clear and the protection afforded by the law should not turn on such fine points. The counter is that the overall thrust of the whistleblowing legislation should be to get the wrongdoing resolved, and that disclosures made in so little detail as to render that effectively impossible (especially after prompting) are more likely to be the province of the mischievous than the genuine crusader for the righting of wrongs, such that the legal protection should not in fact be available after all.