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Welcome to our July Newsletter
We were disappointed in the Court of Appeal judgment this month in Kong v Gulf International Bank which we think may have a chilling effect on whistleblowing. Protect had intervened to seek clarity on when the conduct of the whistleblower can properly be separated from the whistleblowing itself when it comes to dismissal. The Court ruled that a whistleblower raising concerns about serious wrongdoing in a reasonable way can still be dismissed if the employer subjectively finds her behaviour objectionable and therefore separate from the protected disclosure. Despite Ms Kong being found by the Tribunal to have acted reasonably, her employer could still argue it was the upset her disclosure caused that was the reason for dismissal. While the Court said there are likely to be few cases where employers will be able to rely on this upset as a separate reason, Protect’s view is that this judgment will create uncertainty and may make it easier to victimise and dismiss whistleblowers. The law needs to change as the hurdles are too high for whistleblowers. Our press release is here.
This month we welcome the Solicitors Regulation Authority (SRA) applying for status as a ‘prescribed person’ improving protections for solicitors raising concerns with their regulator. We also welcome their new guidance on Strategic Lawsuits against Public Participation (SLAPP). This makes clear that making allegations without merit, where the sole purpose is to stifle valid public discourse, may amount to the breach of Solicitors Principles and Codes of Conduct which could lead to disciplinary sanctions. Protect also welcomes the Government’s announcement to legislate at the earliest opportunity to increase anti-SLAPP protections for whistleblowers and journalists. In their response to the earlier consultation they noted the chilling effect that journalists no longer publish information on serious wrongdoing or corruption because of potential legal costs.
As Parliament goes into recess, we await news on the next Prime Minister. Whoever takes the reins, we will urge them to take forward much needed reforms to civil service whistleblowing, as well as updating whistleblowing law. This month the FCDO agreed to pay a £423,000 settlement to whistleblower and former employee Maria Bamieh. Maria blew the whistle on corruption and collusion of EU officials with Kosovan criminal gangs but Maria claims that instead of supporting her the FCDO decided to force out of her job. As FCDO Select Committee Chair, Tom Tugendhat MP said, "cover up culture benefits no one”.
Maria’s settlement demonstrates that PIDA, the law protecting whistleblowers, does its job – at least some of the time: without PIDA a settlement would not have been possible. This is why we at Protect want to improve PIDA, not repeal it – whistleblowers need employment rights to obtain effective remedies. One interesting suggestion is whether we also need to strengthen sanctions to deter whistleblowing, and you can read our blog about criminal and civil penalties here.
Finally, two new legal advisers joined our advice line team this month. Rachel Wall joins us from Thompsons Solicitors and Phoebe Mather had previously worked for us as a volunteer. You can read about what it's like to volunteer for Protect and the career opportunities it offers in Phoebe’s new blog here. Welcome Phoebe and Rachel!
Protect Summer offer, £50 off our Masterclasses,
This summer Protect is offering £50 off our whistleblowing masterclasses until 30 Sept 2022 including:
Handling a Whistleblowing Concern 31 August 10AM-12PM
Investigating a Whistleblowing Concern 7 September 10AM-12PM
Preventing Victimisation to the Whistleblower 14 September 10AM-12PM
Financial Services Whistleblowing Champions' Masterclass - co delivered with BDBF partner Nick Wilcox 21 September 9:30AM-12PM
Email business@protect-advice.org.uk for more info or book here
Freedom to speak up threatened by a bill that claims to strengthen free speech protection.
Protect legal adviser, Emma Darlow Stearn, discusses the potential negative impact on whistleblowers of the Bill of Rights Bill.
The Bill of Rights Bill (“the bill”), brought in to replace the Human Rights Act 1998 (“the HRA”), has been widely decried by lawyers, academics and civil society organisations across the political spectrum as at best, counterintuitive and, at worst, a fundamentally bad idea.
As prominent human rights barrister, Adam Wagner, pithily puts it:
Is now the time to introduce criminal sanctions?
Recently, some in the whistleblowing community have suggested that there should be explicit criminal sanctions for those who victimise whistleblowers. In this blog Protect legal adviser Kate Austins discusses these proposals and argues that other techniques would be more effective in protecting whistleblowers.
The Public Interest Disclosure Act (“PIDA”) states that victimisation of whistleblowers at work is unlawful but does not expressly impose criminal or civil sanctions on those who carry out the victimisation. Instead sanctioning those individuals is left to regulator-specific enforcement actions
Whistleblowers’ charity condemns Court of Appeal judgment
A whistleblowing case has shown that employers can dismiss an employee over disruptive behaviour even when the employee has made a protected disclosure, raising concerns among campaigners that the law ‘will not stand by whistleblowers’.
The charity Protect said the Court of Appeal’s judgment in Kong v Gulf International Bank (UK) Limited would make it easier to victimise and dismiss whistleblowers.
The claimant, Ms Kong, was employed by Gulf International Bank as a senior business auditor. She raised a number of concerns, which were held to be protected disclosures under UK whistleblowing legislation, including one to the firm’s head of legal, Ms Harding, regarding a legal document being unsuitable.
Read the full article from Personnel Today here
Former executive blows the whistle on alleged Uber lawbreaking
Mark MacGann, a career lobbyist who led Uber’s efforts to win over governments across Europe, the Middle East and Africa, has come forward to identify himself as the source who leaked more than 124,000 company files to the Guardian.
MacGann decided to speak out, he says, because he believes Uber knowingly flouted laws in dozens of countries and misled people about the benefits to drivers of the company’s gig-economy model.
Read the full article from the Guardian, here
What it's like volunteering to help whistleblowers
New Protect legal adviser, Phoebe Mather, discusses her experience volunteering for Protect and the opportunities it gave her.
I began volunteering with Protect when I was nearing the end of my Bar Training Course. Employment law has long been an interest of mine due to the significance for the individuals who bring claims but also the working public. I was drawn to Protect’s volunteering opportunities due to their work with individual whistleblowers but also my desire to explore whistleblowing law’s defining feature – the public interest.
Whistleblowing encompasses law, individuals,
How do I raise concerns internally?
Where you decide to raise your concerns will have an impact on whether you obtain whistleblowing protection under the Public Interest Disclosure Act 1998 (PIDA). Where you go with your concerns will determine the legal tests that you need to satisfy. As a blanket rule, the further away from your organisation you go, the harder it is to qualify for protection.
Broadly, there are three places where you can raise your concerns and be protected:
Your employer or a relevant responsible person
A regulator on the “Prescribed Persons” list
Any one else i.e. a wider disclosure
Whistleblowers: What have we ever done for them?
Protect legal adviser, Emma Darlow Stearn, shares some reflections on the relationship between whistleblowers and journalists inspired by ‘What have whistleblowers ever done for us?’, a panel event at the British Library.
This week’s panel event, What have whistleblowers ever done for us? at the British Library was subject to Chatham House Rules, which means that I am prevented from sharing who said what. However, I am able to share some key takeaways from what was a thought-provoking discussion on the relationship between whistleblowers and journalists, the role of
Australian state of Victoria to restrict deals silencing sexual harassment victims
Employers will be restricted in using non-disclosure agreements to silence sexual harassment victims in an Australian first under the Andrews government’s proposed reforms to curb workplace misconduct.
Under the changes, sexual harassment will be added to industrial laws and made an occupational health and safety issue, putting the onus on businesses to provide employees with a safe working environment.
Read the full article from The Age here.
Protect CEO Liz Gardiner speaks at Free Speech Project event on whistleblowing
On 11 July Protect CEO Liz Gardiner spoke at ‘Can the Role of Whistleblowers Be Protected and Honored around the World?’ a panel discussion organised by The Free Speech Project, a joint endeavour of Georgetown University and Blackfriars Hall at Oxford.
Liz joined Enron whistleblower, Sherron Watkins, former chief of the SEC Whistleblower Office, Sean McKessy and UK solicitor Floyd Graham to discuss how much whistleblowing has changed and how much more needs to be done to protect whistleblowers
Watch the event here
Do you fear you will be punished if you raise concerns at work? Contact Protect on 020 3117 2520 for free, confidential advice and support.
Please help us to support more whistleblowers on our free, confidential, Advice Line.
