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Eversheds comment: Is a UK Code of Practice on Whistle-blowing on the horizon?

  • United Kingdom

    09-04-2014

    The Government's findings from its Call for Evidence regarding current whistle-blowing laws is due any day. With the attention this topic has attracted in recent months, employers are understandably waiting with interest to see what additional rights workers are to be afforded - and the extent to which they might now be forced to take action.

    Simon Rice-Birchall, Partner at global law firm Eversheds, comments:

    “Amidst calls for robust reforms, including introducing mandatory employment policies, widening the categories of protected workers and offering financial incentives, we will soon discover what steps the Government will take. Having issued a Call for Evidence, requesting respondents to share their experiences of existing whistle-blowing laws in July 2013, we are given to understand that the results of that research are to be published before Easter.

    “The Government has remained fairly tight-lipped about its findings and plans. However, what little it has volunteered provides a few clues as to what we might expect. For a start, we know that the Government shares concerns over inconsistent practices and standards across organisations and will make some changes. This is particularly so in respect of disclosures externally and what the Government has referred to as “cultural behaviours” within organisations, which too frequently make the focus of the whistle-blowing the whistle-blower himself or herself, not the issue raised.

    “Despite this, employers will be relieved to learn that the Government does not appear to support mandatory measures, requiring employers to adhere to prescribed policies and procedures. Instead, it seems more likely that the heart of reform will lie in a voluntary Code of Practice, whether or not in the draft form proposed by the charity Public Concern At Work. Whilst voluntary in nature, such a Code would provide benchmark standards, setting direction and sharing best practice, whilst allowing employers the space to get things right, in a way that works best for their particular organisation. Such an approach and steer towards self-regulation has proved highly successful, in the Government’s eyes, in the education and oil and gas sectors. It also appears a preferred option to requiring workers to report wrong-doing, as currently arises in the financial services sector, or offering financial incentives to encourage whistle-blowers to come forward.

    “Faced with an extremely long list of workers to whom it is argued whistle-blowing protection should now be extended, the Government has claimed it will aim to “strike the right balance to include those where there is clear detriment suffered”. Workers, such as non-executive company directors and those filling public appointments, thereby being in positions of knowledge and a degree of independence, may now be added to those categories of workers receiving protection. However, the Government’s conservative response suggests arguments in favour of protecting other groups, such as job applicants (in the sense of those who are new to an organisation), are less likely to be able to demonstrate clear detriment, for the time being at least. It will be interesting to see whether the Government chooses to include partners in LLPs in any proposals, a category of workers who might potentially be exposed to detriment and whom current court proceedings are endeavouring to bring under the umbrella of whistle-blowing protection. Blacklisting too is singled out by the Government as “unacceptable”. Even so, the view expressed that “there is more to be done”, appears to allude to practical or cultural change, rather than addition to existing legal protection in this area.

    “Considerable focus of debate has been upon the role of regulators in the context of whistle-blowing. The automatic referral of tribunal claims to the appropriate regulating body is known to be under serious consideration. The list of recognised regulators, or “prescribed persons”, is also under review but will not be changed in the immediate future and will wait until the list needs the next of its fairly regular revisions, to accommodate name changes, mergers, etc. Even so, it seems widely accepted that both the current list of regulators to whom whistle-blowing must be reported currently and the method for updating that list, which is by statutory instrument, are ripe for reform.”

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