‘Whistle-blowers should be encouraged, protected by law’

‘Whistle-blowers should be encouraged, protected by law’

By ANTONIA FILMER | LONDON | 18 September, 2016

Research on the law and practice of whistle-blowing has been conducted at Middlesex University since 1993. In 2015, a Whistle-blowing Research Unit (WRU) was established there. David Lewis, Professor of Employment Law, the head of the WRU at Middlesex and the Convener of the International Whistle-blowing Research Network, is noticing a distinct climate change in attitudes to whistle-blowing. Following the revelations of Snowden and WikiLeaks, corporate and civil cultures have woken up to the value of whistle-blowing, recognising that it is in the corporate and public interest to excise wrongdoing. Whistle-blowing can make an enormous difference to national security, corruption, health and safety and the environment; gone is the negative connotation that “nothing will be done” and workers are becoming less afraid of retaliation. Professor Lewis believes there is an increase in whistle-blowing because people are less willing to turn a blind eye to wrongdoing. 

Recent examples in the UK are when the Guardian newspaper went undercover into the Sports Direct warehouse and discovered that the company was paying its workers less than the national minimum wage. This operation resulted in a Parliamentary Select Committee investigation, abundant media coverage and consumer resentment. The recent BBC Panorama programme painted a very negative picture of Sellafield, suggesting it was Britain’s most hazardous nuclear sit. The investigation was prompted by a former senior manager, who was worried by the conditions there and the lack of necessary staff to meet safety levels. The whistleblower’s belief was, “If there is a fire there it could generate a plume of radiological waste that will go across Western Europe.” However, UK’s Nuclear Decommissioning Authority and Sellafield Ltd have issued a joint statement refuting the claims made in the BBC broadcast. Recently Keith Vaz, a Labour MP, has been exposed about unreported financial gains that have been added to other disclosures and resulted in him resigning from his parliamentary post. Unfortunately, the media tends to report only the negative side of whistle-blowing, such as when people are victimised, rather than successful whistle-blowing, i.e., when a concern is raised and wrongdoing effectively dealt with.

Clearly, there are tensions, private and public, between the legitimate interest in the confidentiality of the employer’s affairs and in the exposure of misconduct: these have enormous ramifications from a legal and a business standpoint. According to the relevant UK legislation, the Public Interest Disclosure Act 1998, disclosures of information about wrongdoing should be made to someone who has an interest in receiving them; this could be management, a regulatory body, the police or media. Workers will be protected if they reasonably believe that the information they disclose is in the public interest and tends to show one or more of the types of wrongdoing specified in the statute. Intelligent and profitable businesses with good governance will have a whistle-blowing policy to protect their organisation. According to Professor Lewis, some financial, public and academic institutions already have state of the art procedures. Regrettably, over the last 16 years, the UK statute has lagged behind international best practice. Its original purpose was “to protect individuals who make certain disclosures of information in the public interest” and for a time it was an exemplary piece of legislation. More recently, it has been argued that the Public Interest Disclosure Act gives too much prominence to employer interests by allowing them to buy their way out of trouble. Professor Lewis believes it should be mandatory for all employers to have a whistle-blowing procedure, but recognises that a statutory code of practice would also be needed to provide guidance for both small private sector organisations and large public sector bodies. The self-funding whistle-blowing advice charity, “Public Concern at Work” offers strong evidence that legislative reform is necessary. This charity operates a helpline and is busy dealing with abuse in nursing/care homes, malpractice in food production, miscarriages of justice, fraud across all sectors, safety in a work environment, inappropriate behaviours and other wrongdoings.

Prof Lewis proposes that workers should be given a positive right to report concerns, including security services who might have special rules for the protection of information about international relations and intelligence.Indeed, for over a decade he has been calling for the UK legislation to be improved so as to encourage and enable people to raise their concerns. Among the many changes he suggests are the outlawing of discrimination against whistleblowers at the point of hiring and making retaliation against whistleblowers a criminal offence. Prof Lewis also believes there is a case for establishing a specialist body such as a Public Interest Disclosure Agency. Such a body might receive disclosures, arrange for their investigation by an appropriate authority and ensure that advisory and counselling services are available, protect whistleblowers from reprisals and defamation proceedings should their disclosure turn out to be incorrect andto educate the public about the legitimacy of reporting concerns in a democratic society.Both WRU’s and PCAW’s aim is to protect society by encouraging workplace whistle-blowing.

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