Catriona Aldridge: Covid gives a new dimension to denunciation
Legal protection for whistleblowers in the UK is not a new concept – the Public Interest Disclosure Act 1998 (the statute) entered into force as early as 1999. The basic principle remains the same – to provide a framework within which employees feel safe enough to raise concerns about serious wrongdoing within an organization.
More than 20 years later, employers need to be aware that whistleblower protection applies as much to concerns that touch the hearts of workers in the 1920s as it did in the 1990s and that it is possible that it is used for cultural change on issues such as carbon reduction.
Having a statutory framework in which employees feel safe enough to report serious wrongdoing within an organization is clearly a good thing – for employees, employers and the general public. The law does this by prohibiting employers from firing workers or harming them for reporting.
Many employers recognize and embrace it, developing strong whistleblower processes and providing access to a confidential hotline to report such complaints.
On the other hand, UK legislation in this area is relatively complex. This means that it can be difficult to navigate in practice and employers may be wary of it in the context of litigation. Additionally, from a litigation perspective, there is an additional challenge that if a plaintiff succeeds in a whistleblower complaint, it lifts any compensation cap. This means that it can be an attractive tool for applicants looking to lobby employers.
Add to that the fact that this is a high profile topic, often making headlines, covering everything from sports to financial services. It is no wonder that whistleblowing is on the rise.
Over 20 years ago, the law was introduced in the UK amid scandals; the Zeebrugge ferry disaster, the Clapham Junction rail crash, Piper Alpha and various financial scandals. In these cases, staff had been aware of the risk of serious physical or financial harm, but had been too afraid to speak out or had been ignored when doing so.
In 2021, the nature of the scandals that trigger whistleblower complaints is very different. The Covid-19 has brought a new dimension. To be protected under the Act, whistleblowers must make a permissible disclosure that is in the public interest about a type of wrongdoing that falls under one of six categories, one being health and Security. Protect, the whistleblower charity, explained in a report last year that they were “inundated” with Covid-19 health and safety whistleblower issues regarding leave fraud, risk for public safety linked to the lack of social distancing and PPE in the workplace. We have yet to see the full extent of Covid-related claims brought to court due to the backlog in courts, and we expect more as cases are heard.
Exposing environmental wrongdoing may also be an area for future growth.
With more and more companies adopting policies on climate change, the question of how a company behaves in relation to the environment is raised in the public consciousness in a way it never has been before. previously. It’s not hard to imagine more employees worrying about wrongdoing related to environmental damage.
The few complaints to date have concerned issues such as waste recycling and asbestos. Could we see more employees speaking out if companies hide the truth behind their net zero commitments? Of course, Protect calls on British workers to speak out if companies are greenwashing.
For companies that pay lip service to climate issues, this is another reason to take environmental commitments seriously.
Catriona Aldridge is a partner at the international law firm CMS