The EU Whistleblowing Directive was adopted in 2019, and must be implemented in member states by 17 December 2021. This is the first EU-wide legislation on whistleblowing. Many member states either have no protection for whistleblowers, or less comprehensive protection than the Directive now offers.
Non-regression provisions in the EU/UK Trade Agreement do not require the UK to mirror new employment rights introduced in the EU, though they do limit its power to water down rights already in existence at the end of 2020.
While legal protection for whistleblowers has been in place in the UK since 1998, in recent years some have been critical of its relatively limited scope, and the degree of reliance it places on individuals to enforce their rights. The implementation of the Directive across the EU provides an opportunity for the UK to reflect on whether its own legislation remains fit for purpose.
The Directive extends protection not only to workers but also to the self employed, and to those who “facilitate” disclosures without being directly connected with the employer. Protection extends to everyone who acquired the information “in a work-related context”.
In contrast, self-employed people are not protected in the UK. In addition, applicants for jobs (except in the NHS) are not currently covered by the legislation: individuals are only protected against victimisation if this is done by a current or former employer.
The Directive is prescriptive about establishing appropriate “internal channels” for complaints to be made. It also imposes explicit requirements about how disclosures are responded to and recorded. For example, employers must acknowledge a whistleblowing report within seven days and provide feedback within a reasonable time, which cannot be longer than three months after the acknowledgment of the report.
These requirements have no counterpart in UK legislation, though most of the Directive’s requirements in this area represent current best practice in the UK. For example, in March 2015 the Department for Business, Energy and Industrial Strategy published Guidance for Employers and a Code of Practice for whistleblowing. However this has not been made a statutory code. That means there is currently no legal requirement for employment tribunals to have regard to it. Some would also say that the Code is too brief to be of much practical assistance.
What disclosures are protected?
Here the UK’s provision is more comprehensive than its EU counterpart, despite some recent tightening in the definition to introduce a public interest requirement. That is because the range of wrongdoing about which a disclosure could qualify for protection is much broader in the UK than in the Directive. For example, it extends to non-compliance with “any legal obligation”, while in the Directive only breaches of specified EU legislation are covered.
That means that when the Directive is implemented in member states, they will have to “gold plate” the Directive if they wish to protect whistleblowers who disclose breaches of local law, as opposed to law deriving from the EU.
The effectiveness of the Directive will depend to a considerable extent on how it is implemented in member states. Leaving aside its obvious limitations regarding the scope of protected disclosures, it represents a more comprehensive vision of how whistleblowers can best be protected. That’s because it requires the development of robust systems to ensure whistleblowers are listened to as well as conferring rights on those who are wronged to seek compensation.
The Government has promised a review of the UK’s legislation on a number of occasions, of which the most recent was in March this year. That was in response to the publication of data which revealed that one in four COVID-19 whistleblowers who contacted the whistleblowing advice service Protect were dismissed between September 2020 and March 2021. However, there has as yet been no firm commitment on what changes will be made, and when.