Seeking to reverse 24 years of underachievement, UK lawmakers are working to repair the country’s broken whistleblower protection system.
Mary Robinson, a Conservative Parliament member from the Manchester village of Cheadle, introduced a long-awaited reform bill in the House of Commons on April 26. The measure seeks to fix many well-documented problems with the UK’s current whistleblower law, the Public Interest Disclosure Act (PIDA). Only the second law of its kind in the world when it was passed in 1998, PIDA won early praise but since has allowed a vast majority of whistleblowers to suffer retaliation with little or no legal recourse.
“PIDA, our world-leading legislation, is now seen as a discredited and distrusted law that has failed to protect whistleblowers or the public,” Robinson said in an impassioned speech. “The reality is that our current legislation is not working. Where we once led the way, we now lag behind. ”
Robinson’s remarks come nine years after one of PIDA’s original co-authors warned about the law’s major weaknesses. “PIDA is dangerous for whistleblowers because people think they have stronger protection under it than they actually do,” former MP Lord Touhig told The Guardian in 2013. “It is tired, frayed at the edges and needs to be thoroughly reviewed.”
Robinson’s bill has the potential to revolutionize the system. Most critically, it would establish an independent Office of the Whistleblower to help vulnerable witnesses in the workplace. “The office will have real teeth,” she said.
Among its authorities, the office would have the power to investigate retaliation complaints, order victimized employees to be compensated, set and enforce standards for handling cases, and provide direct assistance to citizens. The law would end the practice of pressuring whistleblowers to sign non-disclosure agreements. And it would penalize violations with monetary fines and, Robinson said, prison sentences for “the worst offenders.”
Robinson’s bill also would completely repeal PIDA, which actually is not a standalone law but an amendment to the UK’s labor law. This resulted in victimized employees needing to file civil cases with an Employment Tribunal in hopes of being reinstated and compensated for damages.
Blaming the Messenger
Hundreds of whistleblowers have lost their Tribunal cases because judges ruled subjectively that they did not have pure motives, did not report violations early enough or to the correct person, or were partly responsible for being punished at work. Many employees have lost their Tribunal cases even though judges ruled they in fact were whistleblowers and were targeted for reprisal.
Manchester nurse Jennie Fecitt was bullied, harassed and involuntarily transferred after reporting a colleague had exaggerated his qualifications. A judge acknowledged her supervisors did not do enough to stop the retaliation, but vexingly blamed the transfer on Fecitt herself. Not only did they lose the case, the judge ordered Fecitt and two colleagues to pay £21,000 in legal fees to the UK’s National Health Service.
In another case, neuropsychologist Narinder Kapur was fired from his hospital job after reporting poor patient care. A Tribunal ruled in 2012 that Kapur was unfairly dismissed – not because of his report, but because of management issues. Ignoring the fact that the issues were related to the retaliation, a judge found Kapur 75 percent responsible for being dismissed and reduced his compensation by this amount.
Because the full text of Robinson’s bill has not yet been released, it is not clear what role Employment Tribunals will have – if any – if Parliament passes the measure.
Several studies have exposed major problems with the system. Robinson cited a study by Protect, a London-based whistleblower support NGO, finding just 4 percent of Tribunal cases are successful. PIDA itself is deeply flawed. The law meets only 5 of 20 basic international standards, a 2021 study by the International Bar Association and Government Accountability Project found.
A 2016 study by the Thomson Reuters Foundation and Blueprint for Free Speech found PIDA actually could be making matters worse for employees. “UK law does not – and cannot – adequately protect whistleblowers,” the report said. “A whistleblower has to wait until after they have suffered retaliation before they can obtain ‘protection.’… By then, the emotional, financial and psychological damage has most likely occurred.”
“PIDA is powerless to stop managers and co-workers from retaliating,” the report said. “PIDA can enable and even institutionalise retaliation, rather than preventing, stopping or penalising it. In this way, a law that was intended to help whistleblowers ultimately can open the door to more suffering.”
Robinson said replacing PIDA with a stronger law is only one solution. “If you name an industry, I can name you a scandal brought forward by a whistleblower,” said Robinson, a former accountant. “We need a cultural shift, where whistleblowers are welcomed and encouraged, not dismissed and penalized.”