Protect Newsletter

Dear 

Almost a month into a new government, we’ve been watching the King’s Speech for proposals that may impact on the world of whistleblowing. The promise of a new Employment Rights Bill gives us the best chance in years of seeing whistleblowing reform. 

At Protect, we also use our expertise to intervene in the tribunal and courts to improve whistleblowing law. This month we’ve been before the Employment Appeal Tribunal arguing that charity trustees should have the protection of whistleblowing rights if they are treated badly for speaking up.

We’ve also been following the interesting case of former MP Johnny Mercer protecting whistleblowers in his evidence to the Independent Inquiry relating to Afghanistan. It seems that there has been a quiet compromise – Mr Mercer has not been required to give up the names of whistleblowers, but the Inquiry now has the information it needs. Any other outcome would have had a chilling impact on people coming forward to their MP in future. 
 
Two seemingly unrelated stories - the ongoing Strictly saga and the case of the Olympic dressage medallist, Charlotte Dujardin - share one detail: historic issues have been brought to light by whistleblowers with very damaging consequences. We identify some lessons below.  

Elizabeth Gardiner, Chief Executive.

Protect in the news

Whistleblowing cases on the rise in UK’s employment tribunal system

Former MP Johnny Mercer avoids threat of jail over SAS inquiry – for now

City law firm introduces anonymous microaggression reporting – should your business follow suit?

High Court case ‘could extend whistleblowing protections to trustees’

What links BBC’s Strictly Come Dancing and the world of Olympic dressage? 

We’ve been following two news stories that share some similarities in how whistleblowing revelations have been made and the impact they’ve struck. At Strictly, concerns about professional dancers’ behaviour raised by one celebrity seemed to be ignored, but when a second celebrity came forward to say she’d been physically harmed, action had to be taken. It seems that the employer did not heed the vital “early warning”. A further former contestant has since come forward saying they also raised concerns with the BBC, who are now conducting an internal review. Would a quicker response to the first case have reduced the reputational damage and time taken on the issue by the BBC, and – even more importantly - would they have prevented further harm to other contestants?    

Whistleblowers don’t always shout and don’t always come forward as soon as they see harm. They may want to seek advice, get themselves to a safe new job, or even question whether anyone will notice their concerns. In the Olympic dressage case, the whistleblower has said they were frightened by the prospect of speaking up, and now speaks via their lawyer. We now have the ugly spectacle of the media and some on social media speculating who the whistleblower could be. Our research into the financial services sector, found most whistleblowers acted promptly, with more than half (52%) reporting the wrongdoing within six months of witnessing it, but – like the dressage whistleblower - 16% waited more than two years.    
  
As an employer, that’s a difficult message to hear - that people can sit on a problem for years before eventually blowing the whistle. A lot comes down to trust and confidence in the whistleblowing systems, and the more you can do to make it safe to speak up, the sooner you will hear about risks and harms.    

Training is vital to building trust among staff, who need to know what concerns can be raised through the whistleblowing policy.  Managers need to know how to respond to whistleblowers, avoiding defensiveness and recognising there’s a small window to get that response right - research from our Advice Line shows most whistleblowers only raise their concerns once. Finally, directors and senior leaders need to be aware of their responsibilities, particularly in driving a positive whistleblowing culture. Their buy-in and leadership is crucial. We run an active calendar of training course encompassing a full spectrum of whistleblowing issues, which are CPD accredited and can be booked here. 

Third Sector Podcast

The Third Sector invited us onto their podcast to talk over the benefits and risks of getting involved in whistlelbowing, and measuring the impact of our recent endeavours supporting the BBC's Casualty latest season following a story of whistleblowers in the health sector.

Whistleblowing in the King’s Speech

The King announced a wide range of new bills, the most important for us being an Employment Rights Bill. While whistleblowing didn’t get a specific mention, the new government has said it is committed to strengthening whistleblowing protections. The Business and Trade minister, Justin Madders MP, has confirmed he’s looking at the previous government’s commissioned review of the whistleblowing framework and considering whether the current whistleblowing legislation gives whistleblowers “sufficient confidence to speak out.” There are also a range of changes proposed such as making unfair dismissal a day one right – so a lot to look out for in the employment law space. 

A new “duty of candour” for civil servants will be introduced in the proposed “Hillsborough Law” a testament to the persistent efforts by grassroots organisations and people affected by the Hillsborough disaster. Senior public servants will be legally required to be honest and open, preventing cover-ups and fostering a culture of accountability. Does this add to the Nolan principles of openness and transparency and will those who speak truth to power be adequately protected for doing so? 

A bill is promised to reform the regulation of corporate governance and audit standards, replacing the current Financial Reporting Council. The aim is to deliver better transparency and greater protection against company failures.  

Finally, the new Chancellor, Rachel Reeves says she will appoint a Covid Corruption Tsar targeting waste, fraud and flawed contracts. Our whistleblowing Advice Line was deluged with calls from whistleblowers reporting wrongdoing during the 2020/21 Covid period. 

Charity Trustees 

There are nearly a million charity trustees in the UK. They are responsible for the proper governance of charities and have a duty to report wrongdoing when they see it – but an Employment Tribunal has ruled they cannot claim the protection of whistleblowing law if they suffer as a result of speaking up. This month we used our special position as whistleblowing experts to intervene as a third party in a case at the Employment Appeal Tribunal which we hope will clarify the need to recognise and protect trustees as whistleblowers. If we want trustees to come forward, we need to ensure that they have a remedy if they suffer for speaking up. 

Our Whistleblowing and Sexual Harassment masterclass provides an overview of whistleblowing alongside the practicalities and considerations that come with dealing with such a sensitive issue. Covering the implications of the new Worker Protection Act, this is an essential training for anyone concerned about their workplace culture. 

What does it take to reveal wrongdoing concealed within an organisation? Why is it so difficult to speak up? Does technology help or does it make it harder?

In this new TEDX Talk our Legal Director, Sybille Raphael, explores the topic of “Hidden in plain sight, whistleblowing in the digital age.”