Whistleblowing charity Protect is calling on the government to adopt new EU whistleblowing legislation, or risk UK whistleblowers being left behind with out-of-date legislation. Contributor Protect’s Senior Legal Consultant – Cathy James

As the EU’s Whistleblowing legislation passes its final hurdle in the EU Parliament today (April 16), legal charity Protect, formerly Public Concern at Work, wants the same gold standard protections introduced in the UK.

Protect, who advise whistleblowers on how to safely raise whistleblowing concerns, wants the government to keep its promise that workers won’t be affected negatively whatever happens with Brexit, and strengthen the protection of UK whistleblowers especially those currently not protected if they speak out on public interest concerns.

The EU legislation follows campaigning by the Whistleblowing International Network (WIN) (of which Protect is proud to be a co-founder) and others. The ground-breaking legislation must become law across all EU members by May 2021.

Protect’s Senior Legal Consultant, Cathy James, congratulated the hard work of civil society, but warned against the danger of UK whistleblowers being left behind.

“We want the government to adopt key elements of the EU legislation to ensure more whistleblowers feel safe to speak up and stop harm. As the UK’s leading authority on whistleblowing we hear from far too many whistleblowers – volunteers, self-employed workers, non-executive directors, and cases such as district judge Claire Gilham which we are intervening in – who find they are not adequately protected” she said.

Cathy added, “The broad reach of the directive, including immunity from civil action for those who blow the whistle responsibly and the call for funded legal and other support will level the playing field. If not adopted here, UK whistleblowers will find the legal protection has become a cardboard shield.”

Five key elements for UK government to adopt from EU Directive:

Broadening the whistleblowing protection to include more people including volunteers, Non-Executive Directors, self- employed contractors and job applicants. Under the EU Directive a much broader range of people will be able to claim protections from detriment or dismissal if they whistleblow. Crucially, the directive will also cover job applicants – addressing the difficulties faced when a whistleblower is “blacklisted” and labelled a trouble maker. 

A requirement on all organisations with more than 50 employees to introduce internal channels and procedures for whistleblowing, including protecting their confidentiality and providing feedback. There is currently no obligation on organisations (outside of regulated sectors such as Financial Services or the NHS) to have any whistleblowing arrangements. This simple change would make it easier for workers across the UK to find a route to speak up and stop harm sooner, whatever sector they work in.

New provisions to protect whistleblowers from liability. Under the EU directive, there will be a defence for whistleblowers for incurring civil liability of any kind, provided that they had reasonable grounds for whistleblowing. People will be able to blow the whistle without fear that their employer will come after them for breach of confidence, defamation, data protection and copyright breaches among others.

Introduction of legal aid for Whistleblowers. Currently there is no legal aid for whistleblowers seeking to bring employment claims (except when discrimination matters are also engaged). Too many whistleblowers cannot find legal advice or representation which allows them to take their claims to tribunals – and access to justice for these groups is denied,

New standards for regulators. The directive requires member states to have regulatory bodies who engage with whistleblowers in the industry, sector or profession they regulate. These standards should include how these regulators receive whistleblowing disclosures, maintain confidentiality, provide feedback and follow up on any disclosures made. 

Protect’s advice line handles 3,000 whistleblowing cases each year, and in its history, has supported over 40,000 cases, including through intervening in cases of public policy interest as they pass through the legal system. Strengthening current whistleblowing law should make it easier for the likes of District Judge Claire Gilham. Her case (which Protect is intervening in) goes to the Supreme Court in June to decide whether judges are able to blow the whistle.

District Judge Gilham said, “People may be surprised to learn that Justice does not currently offer specific structural protection for whistleblowers, which other sectors such as financial services and the NHS are obliged to. The Ministry of Justice are asserting before the Supreme Court that Judges are not either currently within the scope of whistle-blowing because they are not workers, so the new EU directive could change this for Judges as it would for the self-employed, NEDs, volunteers etc.”

She added, “My case, seeking statutory protections for whistleblowing in the public interest by Judges in order to protect the independence of the judiciary might well have been easier to pursue under the proposed new EU law.”

Protect will be writing to MPs and prospective MEPs urging these five key elements of the EU Directive to be pushed through.