19 May 2021
Law at Work - May 2021 – 1 of 10 Insights
The UK government has committed to review whistleblowing protections to ensure that they "remain fit for purpose." This followed the whistleblowing advice service Protect publishing data that one in five whistleblowers who contacted its advice line were dismissed after raising COVID-19 concerns in the first six months of the pandemic. This increased to one in four being dismissed between September 2020 and March 2021. BEIS has indicated that it is considering the scope and timing of its whistleblowing review. It plans to introduce a single body to enforce workers' rights, including whistleblower protection, as part of the long-awaited Employment Bill.
The Financial Conduct Authority (FCA) has launched a campaign to encourage those working in financial services to report potential wrongdoing to the FCA and reminds them of the confidentiality processes in place. Its website provides information on how individuals can find out more, when to speak to the FCA and how their identity is protected throughout their process (if they decide to remain anonymous) and what it does with their information.
The FCA also reminds firms that culture and governance remain a key priority for the FCA. Its whistleblowing rules require firms to have effective arrangements in place for employees to raise concerns, and to guarantee these concerns are handled appropriately and confidentially. There is a requirement for firms to appoint a whistleblowers’ champion to make sure there is senior management oversight over the integrity, independence and effectiveness of the firm’s arrangements.
It has published materials for firms to share with employees and is using its events to highlight the campaign. It has also produced a digital toolkit for industry bodies, consumer groups and whistleblowing groups to encourage individuals to have confidence to step forward.
Although employees have always been able to raise concerns directly to an external body such as the FCA, this signals a commitment by it that where employees may choose not to use internal company channels, perhaps through a fear of the consequences of them doing so, they may report to the FCA "in confidence, with confidence".
EU member states have until 17 December 2021 to implement the Whistleblowing Directive into national law although the obligation on legal entities in the private sector with 50 to 249 workers to establish internal reporting channels will not come into force until 17 December 2023.The Directive was designed to provide a minimum level of common and coherent protection to whistleblowers across the EU. According to Protect, as the deadline for implementation approaches, only nine countries have made progress in adopting its standards. Some countries are considering only applying protection to EU law breaches, but not to breaches of domestic law so that whistleblowers and relevant authorities would have to decide whether a concern was a breach of EU or domestic law to determine which processes should apply – "delegates unanimously condemned this approach as an administrative nightmare". Additionally, some countries are using the EU Directive to reduce the protection of their existing laws, despite the EU Directive having a “non-regression clause”. This means that where individuals can currently choose how to escalate their concern (e.g. externally if they reasonably fear retaliation from their employer), a country could downgrade that existing right so that, in line with the Directive, whistleblowers would have to go to their employer first.
Following Brexit, the UK does not have to implement the Directive and its domestic legislation already covers much of the Directive's content, which only extends to protecting individuals reporting on breaches of EU law. One difference is that the Directive requires organisations with 50 or more employees to establish internal reporting channels and respond to reported concerns within set timescales. It is currently unclear whether domestic legislation will be amended to incorporate these same rights in any event to ensure that the UK and European worker rights remain similar.