As we discussed in our last blog on the subject, back in April this year, whistleblowing is rarely out of the news. And so it would seem, with the latest range of stories involving whistleblowers from the NHS and the Police force, to employees of care homes and detention centres. Of course, these are simply the stories making the headlines and there is a clear implication that this is just the tip of the iceberg.
In response to what appears to be an increasing number of people purporting to blow the whistle, as well as a heightened interest in the subject from newspapers and other social commentators, the Government issued a call for evidence on whistleblowing which ran from July to November 2013 and attracted 78 responses.
The Government has now published its response to this consultation. They have announced that the categories of persons who fall within the definition of “worker” for the purposes of this legislation will be specifically extended to include student nurses.
However, they have rejected calls for the definition to be widened further to include, for example, non-executive directors, consultants or contractors, on the basis that the whistleblowing legislation was designed with employment rights in mind. In our view, there is an argument that the way this area of law has evolved since its introduction in 1998, means that it is now wider than a pure employment remedy; the failure to include these groups may be a barrier to this legislation being truly effective. It is possible that the Government shares our views in this regard as they have stated that this area will be kept under review. This leaves open the prospect that it will be reassessed in due course, if the evidence shows that whistleblowing is being ignored if it comes from individuals outside of the specific definition of worker.
In addition to the change above, employees who blow the whistle in the workplace will now receive more information and support to assist them. Employers will also receive a new best practice guide to ensure proper policies are put into place.
The Government suggests that the availability of clear information on who an employee can report wrongdoing to and how whistleblowing works in practice will give employees the confidence to come forward. Employers will also benefit from knowing what to do when an employee discloses wrongdoing. There is also an increased role for MPs to play in the process, as they will now be included on the list of prescribed persons. This means that workers can go directly to their MP if their employer does not respond properly to their concerns.
It is hoped that these measures are the first step towards addressing one of the primary concerns raised during the consultation about the current whistleblowing legislation, namely that it does not provide protection for whistleblowers, only a mechanism by which they can seek compensation after they have suffered detriment or dismissal. We would suggest that there is a limit to what the law can do to provide protection and some would argue that the purpose of the law is to provide the remedy, not the prevention. However, greater clarity of expectations for both employers and whistleblowers will only ever be a good thing and should have the desired effect of ensuring such matters are properly dealt with in the workplace and not by way of last resort to an employment tribunal. In other words, what we need is a change of business culture, not more legislation.