‘WHISTLEBLOWER PROTECTION IN THE UK: NEW RULES, NEW CHALLENGES AND THE BREXIT NEGOTIATIONS’
Dr Stelios Andreadakis
The new Whistleblower Directive on the protection of persons reporting on breaches of European Union Law has been recently approved by the EU Parliament after a long delay and heated debates about the most appropriate means to encourage and protect whistleblowers. As employees are usually the first ones to discover potential violations and expose wrongdoings, they are extremely vulnerable in the event that their concerns are not well received by their employers. The new Directive represents a step forward towards establishing effective mechanisms of protection and bringing consistency across the EU. The present article will discuss the new Directive and the impact that it may have in the UK legal order with reference to the ongoing negotiations for the withdrawal of the UK from the EU.
The New Directive: It took a while but it is finally here…..
Before delving into the provisions of the Directive, it is important to provide a definition of the term ‘whistleblower’. A whistleblower is ‘a concerned citizen, totally or predominantly motivated by notions of public interest, who initiates of his or her own free will, an open disclosure about a significant wrongdoing directly perceived in a particular occupational role, to a person or agency capable of investigating the complaint and facilitating the correction of the wrongdoing’.
The Directive becomes effective in 2021 and aims to harmonise whistleblower laws across the EU and inspire those Member States that do not have any relevant framework in place to consider introducing one along the lines specified by the Directive. Although the issue of whistleblower protection has been extensively discussed in the media, as the stories of Edward Snowden, Chelsea Manning and Julian Assange attracted a lot of attention, there were strong objections to the introduction of an EU Directive. However, when scandals, such as Panama and Paradise Papers, Luxleaks and Cambridge Analytica, reached the headlines, it became apparent that action should be taken, because the voices calling for transparency and accountability became louder and more insistent.
According to the Directive, employees, including trainees, volunteers, and self-employed workers, are protected when they make a disclosure about a specific violation, i.e. tax evasion, money laundering, fraud, data or privacy breach. These disclosures need to be made in good faith and the whistleblower should have reasonable grounds to believe the information was true at the time of the disclosure. The protection that the Directive offers is focused on the retaliation that the whistleblower suffer as a result of the disclosure. Examples of retaliation include, but are not limited to, suspension, demotion, dismissal, intimidation, reprisal or harassment. Any such retaliation is forbidden, and Member States are obliged to provide legal aid as well as financial and psychological support to whistleblowers, in case legal proceedings are initiated against them.
Whistleblower Protection in the UK after Brexit
As in the case of all EU Directives, for the Whistleblower Directive to take legal effect and be legally binding in the UK, an act of Parliament is required to be implemented nationally. At the time of writing, uncertainty remains on the terms of the UK’s exit from the European Union, with a further extension being agreed until 31st January 2020, unless a Withdrawal Agreement is approved and completed earlier. It therefore remains to be seen how, if and to what extent the Directive will be implemented in a deal, no-deal, or no-Brexit scenario, respectively.
At first, if the UK leaves the EU with a deal, the Directive is likely to be incorporated into UK law post-Brexit, by way of update to the existing regime. Considering the fact that London is an international financial hub, it is very likely that whistleblower protection will form part of the corporate governance, compliance and accountability standards that the EU will wish to be upheld as part of any trade deal with the UK. The UK has been one of the first countries in Europe to introduce rules about the protection of whistleblowers, but the current regime dates back to the 1990s, it is fragmented and would benefit significantly from being updated and streamlined with what the other 27 Member States will put in place.
In the event of a no-deal Brexit, whistleblowers will continue to enjoy considerable protection under the Public Interest Disclosure Act (PIDA)1998 and the Employment Rights Act (ERA) 1996. The UK will be under no obligation to amend its system of protection, unless of course it decides to implement some changes that will modernise or strengthen its existing regime. Again, the provisions of the Directive can be used as a guide or a source of inspiration, but the UK will be free to shape its laws at will.
Lastly, in the (unlikely) event that there is no Brexit at all, the Directive will need to be transposed into law by UK legislation and its provisions will be binding. In such a scenario, it is very likely that ERA 1996 will be amended in line with the requirements of the Directive, so that the UK regime reflects the level of protection and overall procedure provided by the Directive.
Regardless of the future of the Brexit saga, the new Directive represents a positive development, as it highlights the importance of whistleblowing and the need to create a culture of openness that will replace the existing culture of silence and retaliation. Companies should encourage internal reporting and employees should feel free to raise their concerns. The existence of whistleblowing policies and reporting mechanisms are essential, but what is even more important is to stop shooting the messenger! The message that the new Directive aims to send is that victimisation and retaliation for whistleblowing should not be tolerated – the onus is now on companies to show that they received the message and took it seriously.