Whistleblowing law - consultation

The government is consulting on whether the operation of the whistleblowing framework in the Employment Rights Act 1996 is working effectively and, if not, how it should be reformed. It’s also canvassing views on a proposal to introduce a financial reward scheme for whistleblowers reporting economic crime.

Among the issues in raised in the consultation are the following:

Protected individuals: although whistleblowing protections apply to a relatively wide group of individuals, they do not extend to everyone who performs work. The consultation asks whether protections should be extended to additional groups.
‘Public interest’ test: the term is not defined in legislation, but the Court of Appeal has set out guidance for tribunals applying the test on a case-by-case basis (see Chesterton Global Ltd v Nurmohamed). The government considers the test to be an important safeguard and is therefore not proposing to remove the test. It is however asking whether the test is operating effectively in practice and whether changes to government guidance would be helpful.
List of wrongdoing: the consultation asks whether the existing categories of wrongdoing in ERA s. 43B are sufficient to capture disclosures relating to these and other emerging risks (e.g. AI), or whether any uncertainty about the protection of such disclosures could be addressed through clearer guidance.
Disclosure routes: to be protected when reporting to an employer, a worker must reasonably believe their disclosure relates to specified wrongdoing and is in the public interest. Where a disclosure is made to a prescribed person (such as a regulator), the worker must meet an additional requirement to be protected: they must reasonably believe that the information disclosed is ‘substantially true’. The consultation asks whether this higher threshold deters workers from making disclosures to prescribed persons and unnecessarily complicates the framework. It also asks whether additional disclosure channels are needed to ensure workers have effective and accessible ways to raise concerns in the first instance.
Policies and procedures: except for certain organisations operating in the financial services sector, employers are not currently required by legislation to have whistleblowing policies and procedures, treat disclosures confidentially, investigate or consider disclosures, or to keep workers informed about any action taken in response to a disclosure. The consultation asks if this should be a legislative requirement (along the lines adopted in Ireland) or whether beefed up guidance is the answer. If a statutory requirement was introduced, the government’s preference is for civil rather than criminal penalties.
Interim relief: the consultation asks whether the current 7-day deadline for applying for interim relief remains appropriate, and for views on the potential benefits and drawbacks of extending it.
Navigating the framework: to qualify for protection under the whistleblowing framework, a worker must meet certain conditions, including making their disclosure through an appropriate disclosure route. One such route is disclosure to a ‘prescribed person’. The consultation asks whether there should be an independent body which could act as a central point of contact, receiving disclosures and directing them to the appropriate prescribed person, or whether a more proportionate alternative would be to develop an AI-assisted tool to help workers identify the correct prescribed person. The government’s view is that there is no need for reform in this area, but it is nonetheless consulting on it.
Financial rewards: the Serious Fraud Office (SFO), with government support, is proposing to introduce an incentivisation scheme that would reward people who provide information about economic crime to the it (‘economic crime whistleblowers’) where that information leads to a corporate conviction or alternative enforcement action. The consultation seeks views on the design of such a scheme.