The introduction of whistleblowing legislation in the UK in 1998 has encouraged a corporate culture which supports those who voice concerns. Employers increasingly recognise that supporting this kind of challenge reflects a healthy working environment. Employees who are either aware of their legal rights in this area, or who are encouraged to speak up by whistleblowing policies in operation in their workplace, are now more empowered to voice concerns to their employers.

While the UK was the first European country to introduce protective laws for whistleblowers, there is an increasing focus and pressure on the UK Government to reform the current regime in favor of one which affords greater protection to those who may be whistleblowers in the employment context.

The UK has afforded protection to those who raise concerns about potential wrongdoing in the workplace since the introduction of the Public Interest Disclosure Act 1998. If a disclosure is protected, then the person who made it will be protected from being dismissed or subjected to a detriment on grounds of that disclosure.

In order to attract protection, the worker must make a protected disclosure. In simple terms this can be broken down as follows:

• There must be a disclosure of information.
• The disclosure must relate to certain specified kinds of malpractice.
• The worker must have a reasonable belief that the information tends to show one of the specified kinds of malpractice.
• The worker must have a reasonable belief that the disclosure is in the public interest.
• The disclosure will only amount to a protected disclosure if it is made to the right person in the right circumstances, as specified in the legislation.

The specific types of malpractice the legislation protects include:

• the commission of a criminal offence;
• breach of legal obligations;
• a miscarriage of justice;
• the endangerment of the health and safety of any individual;
• environmental damage;
• the deliberate concealment of information relating to any of the above.

There is also scope under the UK framework for an employer be held vicariously liable for any detriment suffered by the whistleblower at the hands of their colleagues during the course of employment.

When the EU was considering its own whistleblowing protection laws it acknowledged that the UK already had in place a comprehensive protective regime in place to protect whistleblowers. Irrespective of that, there are differences between the current UK regime and the requirements of the EU Whistleblowing Directive introduced in December 2021. This is explained in more detail below.

Research conducted by YouGov on behalf of the whistleblowing charity Protect between 2011 and 2018 demonstrated that the majority of people would be willing to raise their concerns if they witnessed wrongdoing in their place of work; in 2018, 84% of respondents said that they would speak up if they felt the need to. This potentially reflects a general view that whistleblowers are doing the right thing by raising concerns and they are not stigmatised by their peers for doing so (albeit that whistleblowers are often concerned about the impact of making a disclosure on their careers and the attitude of future potential employers towards this).

Protect found in its 2021 survey of UK workers that the public’s awareness and understanding of the UK’s whistleblowing laws is less than overwhelming: 52% of respondents were either unaware of the protections available or did not believe that there was any protection available to whistleblowers at all. Just 31% of respondents were confident that they knew how to raise a whistleblowing complaint at work.  A study by the University of Greenwich in 2012 established that 80% of British adults think that people should be supported for revealing serious wrongdoing, however less than half of those surveyed were confident that employers would protect people who made a disclosure.

There is an undeniable call for stronger whistleblower protection in the UK. This has been driven by a number of different factors including:

• An increase in whistleblowing cases brought before the Employment Tribunal. For example, in 2019-2020 there were 2,827 whistleblowing claims presented which was almost double the number of claims in 2016-2017.
• A campaign by the UK’s leading whistleblowing charity, Protect, called ‘Let’s Fix UK Whistleblowing Law’. As part of this campaign Protect has highlighted that, at the moment, too many whistleblowers are either ignored or victimised when they speak up.
• The implementation of the EU’s Whistleblower Directive. While the UK is no longer under a legal duty to implement the Directive, it is obliged to maintain employment protection standards which match those which apply in the EU. The Directive goes further than the current UK regime by expanding the range of protected individuals to include self-employed contractors, volunteers and non-executive directors. It also provides legal aid for potential whistleblowers and implements provisions to protect them from potential liability under breach of confidence, defamation or data protection laws. The Directive also imposes a requirement on private sector entities with 50 to 249 employees to establish internal whistleblowing channels if these are not already in force.

It was reported in March 2021 that the UK Government was committed to reviewing existing whistleblowing laws and it acknowledged the wider interest in doing so. This intention was restated in July 2022. However, it is unclear whether the focus of the review will be to repeal or simply reform the current legislation. One of the key points for reform is likely to be the extension of protections of the current legislative regime to a wider group of individuals. This would mirror the protections afforded under the EU Whistleblowing Directive. Consideration will need to be given to how such an expansion in scope would impact on the already overburdened UK Employment Tribunal system. To date, however, there has been little update from the UK Government on its review of UK whistleblowing laws.

While there have been clear indications in recent times of the efforts to ensure the UK’s reputation as a leading protector of whistleblower rights, there are strong calls for more to be done to ensure that individuals are aware of the rights that are available to them under the current legislative regime and feel confident to use them.