‘Extend whistleblowing protections in line with new EU law’

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The government is being urged to adopt new EU whistleblowing legislation, to avoid the risk of UK whistleblowers being left behind with out-of-date law.

New EU laws, being ratified today (16 April) would broaden whistleblowing protections in the UK to cover more people with public interest concerns, such as job applicants, non-executive directors, volunteers and self-employed workers. It would also introduce a whistleblower regulator in member countries.

Designed to improve on and harmonise the currently patchy protections on offer across the EU, the directive will be implemented across the 28 countries by May 2021.

The UK already has protections under the Public Interest Disclosure Act 1998 but legal charity Protect says the new directive will significantly improve protections in the UK. Campaigners say the government is not expected to oppose implementation of the new laws but neither has it explicitly confirmed it would bring them into UK law after Brexit.

Ministers are being urged by Protect, which advises whistleblowers, to keep their promises to ensure that workers won’t be affected negatively after any form of Brexit.

Cathy James, Protect’s senior legal consultant, warned against UK whistleblowers being left behind and said the charity had been contacted over the years by many people, such as self-employed workers, who found they were not protected by UK law.

She added: “The broad reach of the directive, including immunity from civil action for those who blow the whistle responsibly and the call for funded legal and other support will level the playing field. If not adopted here, UK whistleblowers will find the legal protection has become a cardboard shield.”

A further requirement of the new EU laws will mean that all organisations with more than 50 employees will have to introduce internal channels and procedures for whistleblowing, including protecting their confidentiality and providing feedback. There is currently no obligation on organisations (outside of regulated sectors such as financial services or the NHS) to have any whistleblowing arrangements.

If not adopted here, UK whistleblowers will find the legal protection has become a cardboard shield” – Cathy James, Protect senior legal consultant

Whistleblowers will also be protected from liability. Under the EU directive, there will be a defence for whistleblowers for incurring civil liability of any kind, provided that they had reasonable grounds for their actions. People will be able to blow the whistle without fear that their employer will be able to take them to court for breach of confidence, defamation, data protection and copyright breaches.

Strengthening current law would help whistleblowers such as district judge Claire Gilham, Protect said. Her case goes to the Supreme Court in June to decide whether judges are able to blow the whistle.

Gilham said: “People may be surprised to learn that Justice does not currently offer specific structural protection for whistleblowers, which other sectors such as financial services and the NHS are obliged to. The Ministry of Justice are asserting before the Supreme Court that judges are not either currently within the scope of whistleblowing because they are not workers, so the new EU directive could change this for judges as it would for the self-employed and volunteers etc.”

She added: “My case, seeking statutory protections for whistleblowing in the public interest by judges in order to protect the independence of the judiciary, might well have been easier to pursue under the proposed new EU law.”

Protect will be writing to MPs and prospective MEPs urging these five key elements of the EU directive to be pushed through.

Věra Jourová, EU commissioner for justice, consumers and gender equality said of the new laws: “Dieselgate, the Panama Papers and Cambridge Analytica revelations made us realise how whistleblowers help uncover unlawful activities that damage both the public interest and our general welfare.

“We must support and protect the courageous people who bring illegal activities to light. I am happy that we have reached a balanced system that encourages employers to solve problems internally but also allows whistleblowers to turn to public authorities without fear of retaliation.”

Protection given to whistleblowers across the EU is currently fragmented and uneven. In most EU countries the protection granted is partial and only applies to specific sectors or categories of employees.

The commission committed to take action to protect whistleblowers at the second Annual Colloquium on Fundamental Rights in November 2016, which was on the theme of media pluralism and democracy.

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