Whistleblowing in the Age of the Modern Multi-Jurisdictional Worker

The United Kingdom was one of the first countries globally to introduce a set of legal rights specifically for the benefit of those who raise concerns in the workplace about wrongdoing, risk, or malpractice, and are treated detrimentally as a result (ie, whistleblowers). The legislation – the Public Interest Disclosure Act 1996 (PIDA) – gave such individuals a right to sue their employer for damages within a specialist employment tribunal (or, as it was then, an industrial tribunal), and in doing so, provided a strong disincentive for organisations to mistreat – or attempt to silence – those who spoke up in the wider public interest.

Prior to this point, there were some instances of whistleblowers taking their employer to court over mistreatment which they had suffered, but these were novel cases which involved reinterpretation of pre-existing common-law legal principles which had been developed for very different purposes. The result of this prior position was that protection was almost non-existent for all but those whistleblowers with either the best-paid, or most-motivated, legal teams.

PIDA – which incorporated a number of provisions into the main UK employment law statute, the Employment Rights Act 1996 (ERA) – created a single legislative framework specifically designed to provide legal protection to whistleblowers. This codified system of rights not only provided whistleblowers with a clear framework for understanding their rights, but also sent a strong message to the business community that mistreatment of whistleblowers would not be tolerated.

Where a worker had a made a ‘protected disclosure’ (effectively the Act’s definition of whistleblowing), they then had a right not to be dismissed from their position, or to suffer from any form of detriment, in consequence of having made that disclosure. In the event that either right was breached, the worker could bring a claim for compensation and (or), in the case of dismissal, reinstatement into their past role, or re-engagement into a different role.

PIDA was at the time ground-breaking in that it:

• applied to everyone in work, not just those from the public sector, or from specific industries;
• applied to a number of different work relationships beyond traditional employment, including agency workers, secondees, certain trainees, those in work experience, and other less formalised working arrangements;
• protected against both formal forms of reprisal (ie, dismissal or disciplinary) as well as informal forms (ie, bullying, being passed-over for promotion, negative changes in working practices, etc);
• did not require the whistleblower to necessarily be correct about their concerns, only to have a ‘reasonable belief’; and
• prevented employers from ‘gagging’ whistleblowers through the terms of their contract.

Perhaps the greatest contribution which PIDA gave to the field of whistleblowing law, though, was the structured approach which it took to the question of who whistleblowers could raise concerns to, and under what conditions.

It is widely seen as societally desirable for whistleblowers to first provide their employer with an opportunity to resolve concerns before the issues are escalated elsewhere. It is, however, also understood that in some circumstances forcing the whistleblower to raise the issue with their employer first would be counter-productive – especially where senior management had already intimated a particular view towards the issue, or were themselves involved in the wrongdoing.

Similarly, there can be competing priorities between employers and employees with respect to confidentiality: on the one hand, employers have a legitimate interest in ensuring that concerns raised in relation to the operation of their business are handled confidentially; but on the other, past experience has shown that scrutiny from the media can be instrumental in ensuring that issues raised by employees are properly addressed.

The balance between these various competing goals was struck by the creation of a tiered system in which the legal thresholds which were required for a ‘protected disclosure’ to an employer were substantially lower than those required for disclosure to a regulator, which were in turn substantially lower than those required to gain protection for disclosures to the media, or other outside agencies. Importantly, however, a putative whistleblower was not required to undertake any...

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