By Dr Minh Alexander NHS whistleblower and former Consultant Psychiatrist, Martin Morton social care whistleblower and former Social Services Manager, Master of Laws, Clare Sardari NHS whistleblower and former trust head of Organisational Development, 11 July 2018. Published 18 July 2018.
The UK Public Interest Disclosure Act 1998 was passed in a different era and considered progressive in its time but it has not lived up to expectations. It was a private member’s bill and was not properly debated in parliament. Serious flaws in the Act and resulting injustice have been evident for many years. However, key players in the UK whistleblowing scene have not called for its abolition, only adjustments. PIDA is now seriously out of kilter with international best practice. The proposed EU directive on whistleblowing published three months ago underlines PIDA’s unfitness and how far behind it has fallen. It should be replaced. Below is a brief digest of key issues and some recommended principles that any new UK law should encompass. What is needed now is a formal review of the law and in depth, inclusive debate to properly test any alternatives. The government and Law Commission have been asked to review the legislation.
Our thanks to Ashley Savage Lecturer in Law for comments on this paper.
REPLACING THE PUBLIC INTEREST DISCLOSURE ACT (PIDA)
· Does not ensure that whistleblowers’ concerns are addressed
· Does not confer protection
· Invites further whistleblower reprisal through the legal process
· Unfairly places a burden on the whistleblower to litigate and does not offer an alternative means of seeking redress
· Is financially inefficient and its weakness has resulted in waste
· Only relates to harm caused by employers and fails to address harm caused by regulators and other parties
· Does not effectively deter reprisal or provide penalties against individuals who harm whistleblowers
· Fails to protect Human Rights
· Makes no provision for an effective enforcement structure
· Contains no requirement for regular review of its own efficacy
We propose that any law which replaces PIDA should feature these key principles:
· It should serve the public interest in all respects
· It should ensure timely follow up of whistleblowers’ concerns
· It should require pre-detriment protection
· It should provide for civil and criminal penalties for reprisal
· It should provide expeditious relief from reprisal, and redress, which does not require the whistleblower to litigate
· It should provide fair remedy for loss, restoring a whistleblower to a position they would have occupied, but for whistleblowing and its consequences
· It is supported by a dedicated enforcement structure that is independent of government, that has powers
– to investigate where local investigation has failed
– to protect
– to take corrective action against reprisal
– to apply penalties and prosecute where there have been criminal breaches
· It is regularly reviewed by parliament and any difficulties with implementation are addressed
Whistleblowing is work-based speaking up for the common good. It highlights serious risks and harm to the wider public. It follows that effective whistleblowing law should ensure that concerns are effectively handled and that those who speak up are not silenced and victimised. Current UK whistleblowing law, the UK Public Interest Disclosure Act 1998 (PIDA), achieves neither of these aims.
The Act passed as a private member’s Bill without opposition in parliament and was not sufficiently debated. It was designed to make minimal investigatory demands and not to add regulatory burden to businesses. Doubts that were raised over a closely-related precursor Bill’s ability to prevent disasters, for example the Zeebrugge ferry sinking which claimed 193 lives, were never properly answered. PIDA has only been reviewed once in twenty years, and mostly occasionally adjusted. There is little evidence that the Act has met the expectations of its proposer Richard Shepherd MP that it would ‘ensure that where malpractice is reported in an organisation, the response deals with the message, not the messenger.” Neither did it provide any anticipated accountability.
Repeated failures of whistleblowing governance since the Act was passed have shown that it has not deterred malpractice. Over 23,000 claims have been made under PIDA since it came into force, with claims rising over the years (until the introduction of Employment Tribunal fees in 2013, which discouraged a substantial proportion of claims). This does not suggest that employers are less likely to mistreat whistleblowers as a result of the Act being passed.
PIDA was folded into employment law, which has had the effect of focussing on disputes and putting whistleblowers on trial, instead of protecting the public. Settlements may have the effect of gagging whistleblowers about wrongdoing. PIDA has increasingly fallen behind international best practice standards. Examples of countries that have better whistleblowing law than the UK are Albania, Serbia, Bosnia and Zambia.
The emergence from the Gosport War Memorial Hospital deaths inquiry of critical failures to listen to whistleblowers emphasises very painfully that it is vital to ensure more effective legislation. The government has claimed that the failures were historical but there is clear evidence that Gosport could easily happen again. Further information is provided below on PIDA’s key weaknesses.
- PIDA does not ensure that whistleblowers’ concerns are addressed
PIDA’s central weakness is that it does not require anyone to investigate or act upon whistleblowers’ concerns. This enables cover ups, defeating the intended purpose of the law. Whistleblower retaliation is driven by cover ups. Law that is meant to protect whistleblowers should not facilitate the prime driver of their reprisal, or allow concealment against the public interest. It is now international best practice for whistleblowing law to require follow up in response to whistleblowers’ concerns.
- PIDA does not confer protection
UK law does not require anyone to protect whistleblowers. It only allows whistleblowers to claim for compensation after they have suffered harm. The law is not even effective in ensuring that harmed whistleblowers receive compensation after the fact: approximately only 3% of claims under PIDA succeed at hearing. It is now international best practice for whistleblowing law to proactively confer protection before detriment has occurred and provide access to relief from reprisal.
- PIDA invites further whistleblower reprisal through the legal process
PIDA came about amidst concerns that a whistleblowing law might be a ‘nitpickers charter’ for ‘whingers’, ‘obsessed’ and ‘disgruntled’ individuals with ‘grudges’ who might wilfully damage businesses’ reputations or ‘blackmail’ them into pay outs in return for silence. To overcome such concerns, PIDA introduced legal hurdles with the intention of screening out those who acted unreasonably or in bad faith. In practice this proved very damaging to whistleblowers. Under PIDA, to avoid blame and limit compensation liability, employers must attack whistleblowers’ credibility and character, and fabricate alternative explanations for detriment.
Even when the Tribunal determines that whistleblowers are genuine and have been harmed, they may still be easily persuaded that detriment was unrelated to whistleblowing. Compensation may be reduced if employers convince the court of contributory fault by the whistleblower. Pre-existing legal tests that had been applied to ordinary employment cases, were applied to PIDA cases. This is wrong because in the public interest, it should be harder for employers to tear down whistleblower cases. Workers are often unaware of the complicated legal hurdles that they must clear in order to succeed under PIDA. They may make critical technical mistakes in how they raise concerns. Such overly complex arrangements have been criticised as ‘hollow’ by the UN.
Employers have used the law to punish genuine whistleblowers by pursuing them for costs on questionable grounds. Employers may also prolong litigation to exhaust whistleblowers’ financial reserves or to intimidate them. Living under such legal siege for years is profoundly distressing. Thus, the litigation process has become part of the trauma that whistleblowers suffer. It is very wrong that citizens who act in the public interest are essentially made into targets by the law that is supposed to protect them.
- PIDA unfairly places a burden on the whistleblower to litigate and does not offer an alternative means of seeking redress
It is wrong that whistleblowers who perform a public service and are harmed must take the serious risk of litigating against a much more powerful employer entirely on their shoulders. Some whistleblowers may be bankrupted as a result of losing claims under PIDA, especially if costs are awarded against them. The requirement to litigate is particularly unjust to low paid workers, who face the greatest inequality of arms. PIDA fails to offer whistleblowers a means of redress that does not require litigation, such as the option of seeking protection from a dedicated agency with the necessary powers to take corrective action. It is now international best practice for whistleblowing law to prescribe a dedicated agency with powers to take corrective action against any harassment of whistleblowers.
- PIDA is financially inefficient and its weakness has resulted in waste
PIDA was designed to have low impact on the public purse but its weakness has had unintended consequences. There continues to be a burden on court time because whistleblowers are unprotected and a high number of claims are made. Costs of litigation are high relative to compensation available. Whistleblowers may be left little to live on or even left in debt despite ‘winning’ cases. Costs may be particularly shocking in cases defended by public bodies. Such bodies may squander public resources in terms of legal costs and court time by unreasonably resisting claims and deliberately drawing out litigation. An EU study concluded that better whistleblower protection would generate savings for the public purse.
- PIDA only relates to harm caused by employers and fails to address harm caused by regulators and other parties
This is a significant omission as harm done by oversight bodies and senior officials is arguably more serious. Both system and professional regulators are frequently implicated in whistleblowing governance failures. Detriment in law should include neglect and failures to respond and act, which are very common responses to whistleblowers. Moreover, regulators may cause harm by colluding with and prosecuting vexatious cases against whistleblowers, whilst shielding wrongdoers. International best practice now includes protection against harm by all relevant parties and not just employers. Irish whistleblowing law provides an example of this.
- PIDA does not effectively deter reprisal or provide penalties against individuals who harm whistleblowers
Under PIDA, organisations only have to occasionally pay compensation. Individuals who victimise whistleblowers are not held to account. This is a significant omission as whistleblower reprisal can be orchestrated and even amount to criminal harassment. ‘Bullying’ is not defined in UK law. The threshold for criminal liability for ‘harassment’ as defined by the Protection from Harassment Act 1997 can be prohibitive and rarely invoked in the employment arena. Whistleblowers will often experience “an impassioned collective campaign to exclude,punish or humiliate” (Leymann) and it is this collective abuse of power within institutions which is often whistleblowers’ undoing and which urgently needs addressing. Other jurisdictions have developed what are known as moral harassment (or mobbing) laws – most particularly Sweden and France. ‘Moral harassment’ would not only give a name to the the reprisals that whistleblowers face but provides an alternative legal framework to impose sanctions on institutions who undertake those reprisals, especially those which seek to use public money to fund this unlawful conduct.
- PIDA fails to protect Human Rights
Whistleblower suppression and mistreatment may affect basic rights of free speech, rights to family life and the freedom of the press in that whistleblowers serve a vital role in bringing key information to light that supports democratic processes. PIDA’s weakness allows such rights to be infringed. PIDA should be reviewed against a growing body of jurisprudence from the ECHR. An example of good practice is that Irish whistleblowing legislation acknowledges that whistleblowers’ families may equally suffer the effects of reprisal, and so recognises detriment to third parties.
- PIDA makes no provision for an effective enforcement structure
PIDA toothlessly provides for ‘Prescribed Persons’ to receive UK whistleblowers’ disclosures, but gives no guidance on whether or how they should protect whistleblowers or follow up on concerns. PIDA leaves it to the government to designate Prescribed Persons. The result has been a confusing plethora of ill equipped individuals and organisations designated as Prescribed Persons who in reality take limited or no action, may not be regulators and are highly variable in their responses to whistleblowers, leading to an unjust lottery. There has been limited formal study of Prescribed Persons. It is now international best practice for whistleblowing law to prescribe a dedicated whistleblower protection agency that can enforce good practice and protect whistleblowers.
- PIDA contains no requirement for regular review of its own efficacy
The natural institutional resistance to transparency about whistleblowing requires safeguards at every stage. PIDA has been reviewed only once in twenty years despite obvious problems, and the review resulted mainly in government plans to merely promote culture change. It is now international best practice for whistleblowing law to contain provisions for review.
UPDATE 19 JULY 2018
Following the release of the inquiry report on the Gosport deaths disaster, Dr Philippa Whitford MP for Central Ayrshire secured a Westminster Hall debate on NHS whistleblowing and the need to replace the UK Public Interest Disclosure Act. This took place on 18 July 2018. The government acknowledged that there were serious concerns about the Act and agreed to consider a review of the law.