Employment Rights Bill

Baroness Kramer Excerpts

2nd reading
Thursday 27th March 2025 Lords Chamber

[Baroness Kramer (LD)]

My Lords, I will confine my engagement with the Bill and my remarks to whistleblowing protection and NDAs. I intend to bring forward amendments in these areas as well as to join on amendments tabled by others, especially those from the noble Lord, Lord Wills, and, I hope, from the noble Baroness, Lady Morrissey—my colleague Layla Moran brought forward the NDA sexual harassment amendment in the other place.

I have long argued that existing protection for whistleblowers under the Public Interest Disclosure Act 1998, PIDA, is wholly inadequate. The inadequacy is in part because PIDA is drafted as employment law, limiting the remedies to workers and seeking redress through an employment tribunal. It is a great injustice to the many whistleblowers that in law the term whistleblower is restricted only to those categorised as workers.

In contrast and somewhat confusing matters, this House will know that HMRC has recently relaunched a significantly improved whistleblower rewards scheme, which invites any citizen with evidence of fraud to come forward as a whistleblower. HMRC is not alone; the CMA has a long-standing incentivisation scheme for citizen whistleblowers and now the Serious Fraud Office is also looking to incentivise citizen whistleblowers. In a sense, the enforcement agencies are freelancing to try to deal with the problems in PIDA, but it gives us an opportunity to redesign the whistleblowing framework and remove the barriers that PIDA—I am sure, unintentionally—originally created.

But the problems go well beyond just who is covered by PIDA, a law that few, even lawyers, really understand, as demonstrated by the alarmingly low rate of whistleblower cases that succeed in employment tribunals —about 4%. They are brought by people who are recognised and acknowledged by everyone in the room to be whistleblowers, but they cannot carry their cases through.

The employment tribunal process is tortuous. It pits a whistleblower with limited resources, limited knowledge and little, if any, legal assistance, even when there is trade union support, against an organisation with often unlimited resources and expert legal counsel. It exhausts and impoverishes whistleblowers by allowing cases to be dragged out for years; it requires the whistleblower to provide conclusive evidence to prove that they were dismissed because of whistleblowing; and the tribunal is not concerned in any way to see that the wrongdoing identified by a whistleblower is investigated.

The entire system is set up to encourage whistleblowers to settle their case, and, more often than not, they have no choice but to sign settlements containing non-disclosure agreements, known in the UK as confidentiality clauses. The NDA acts as a tool to enforce silence and suppress evidence of harm to the public; we have heard how it plays that key role in sexual harassment cases.

Among amendments I will bring, I intend to include an office of the whistleblower, structured as a hub to work with regulators and enforcement. It will be a place where whistleblowers can confidentially and anonymously deposit information and evidence of wrongdoing without fear of retaliation. It will be in a position to identify significant patterns of wrongdoing, such as in the Post Office Horizon scandal, and it would help so much in sexual harassment cases by making sure they were pulled together and visible in one place. It will also have the power to impose remedies and compensation where whistleblowers suffer detriment. I would prefer it to sit under the Cabinet Office, but I probably have no choice but to put it under trade and industry.

I know that I am going slightly over time, so let me just say that I am also supporting the duty of candour, and the folks behind that move—which is crucial—are also supporting the office of the whistleblower.