Whistleblowing

Laura Pidcock Excerpts

Wednesday 3rd July 2019 Commons Chamber

[Laura Pidcock (North West Durham) (Lab)]

What an interesting debate this has been. I, too, would like to congratulate all those brave people who have come forward as whistleblowers. There has been so much agreement in this Chamber and that is not just because there are so few of us here; it is because this is a serious issue that we all have a willingness to try to redress.

I congratulate the right hon. Member for North Norfolk (Norman Lamb) on applying for and being successful in securing this debate. His speech went to the very heart of the question: where people have done a very brave thing in reporting abuse, they are then subject to serious detriment. This is what I have been amazed by in this debate: rather than us concentrating all our energies and efforts on how the process can work best and how swift investigation can take place, they have been spent thinking about whistleblowers using their energies to fight to save their job, their relationships, home and mental health. The important point is the corrosive, knock-on effect on how everybody else feels about the system and their willingness to come forward and blow the whistle.

The case of Dr Day and the numerous other whistleblowing cases are illuminating. Nearly 10 years into austerity, the huge cuts in the public sector and the long-term societal shift towards privatisation lead to a couple of conclusions. First, the cuts need to stop—as a Labour Member, I would say that—because they often create dangerous working conditions, with staffing and skills shortages, and the privatisation of care is inappropriate. Secondly, we need much more robust legislation in the face of these conditions. A crucial theme that has been repeated throughout many hon. Members’ speeches is the unequal distribution of power in the workplace; as with so many workplace issues, legislation must redress that inequality.

The right hon. Member for North Norfolk and my hon. Friend the Member for Ellesmere Port and Neston (Justin Madders) mentioned the need for non-regression clauses in respect of EU directives that pertain to workers’ rights after our withdrawal from the European Union. The hon. Member for Thirsk and Malton (Kevin Hollinrake) highlighted an important trend that seems to occur when people whistleblow: rather than a thorough investigation being made of their claims, disciplinary procedures are used as a silencing mechanism. The hon. Member for Stirling (Stephen Kerr) paid tribute to the whistleblowers and stressed their selflessness. I think that there is probably a burden that those people wish to relieve selfishly, seeing that harm, but he is absolutely right that they are doing it to put an end to the harm or misconduct that they see.

There have been so many important speeches. My hon. Friend the Member for Oxford East (Anneliese Dodds) spoke about the complex picture for constituents trying to understand who the prescribed person is. If as Members of Parliament we find it confusing, imagine what it is like for people with very busy lives who are not navigating these systems all the time—it shows that there is a failure in the system.

For many years, whistleblowers were not given the protection that they need and deserve, and were left at the mercy of unscrupulous employers and state organisations. There are many victims of that negligence, so it is right that the balance started to shift from 1996 onwards, first with the Employment Rights Act 1996 and then with the Public Interest Disclosure Act 1998 and its revisions between 2013 and 2015. However, in this place, we must continuously ask whether our protections and support for whistleblowers are inadequate in an ever-changing work and political environment. I therefore welcome this debate and will shortly outline some of the principles behind my party’s approach.

There are currently three key protections for those who have made a protected disclosure: first, the right not to be subject to detriment as a result of whistleblowing; secondly, the fact that where the principal reason for dismissal is the fact that a worker has made a disclosure, that dismissal is automatically unfair; and, thirdly, the fact that where a provision in any other agreement seeks to prevent whistleblowing, that provision is void. However, while those protections are important, they do not address the current failures in the law—the gaps that allow many workers to fall outside the legislation’s scope. Nor do they address an issue that has been raised in all hon. Members’ contributions: the failure to encourage the cultural changes that will promote a culture of honesty and transparency in our workplaces, businesses and organisations—a culture where whistleblowers are celebrated as a public good that forces organisational change.

The failure to cover all workers, because of the definition of “worker” that is used, is a major flaw in the current legislation; it means that many self-employed workers are not covered, for instance. As we know, self-employment is a much abused and contested category. It cannot be right that, just because someone is employed on a contract that tries in the first place to absolve their real employer of responsibility for them, they are also denied protections with regard to whistleblowing. Also excluded are most job applicants, which means that whistleblowers can routinely suffer detriment through the recruitment process, without any redress, because they are known to be whistleblowers. Surely that is an anomaly, given that job applicants have the right to protection under the Equality Act 2010 from discrimination, harassment and victimisation.

The Government’s approach to whistleblowing makes little attempt to encourage a proactive culture that not only supports whistleblowers, but creates conditions in which the issues that they disclose are taken seriously in a timely manner and remedies are sought. Where is the requirement to investigate, and where are the mandatory and, importantly, enforceable methods of supporting good practice and cultural change? UK law needs to be much more proactive, and early intervention should be prioritised to protect both the whistleblower and the public.

It is clear that, in recent years, we have fallen well behind other countries on this issue, which is hardly surprising, given the Government’s anti-worker stance on most issues. That was thrown into sharp relief by a recent EU directive that provides protection for the self-employed, and requires organisations with over 50 employees to establish reporting channels.

I would like to say a few words on the principles that will guide a future Labour Government, which hopefully is not too far off, when it comes to whistleblowing. Our key objectives in government will be to encourage people to raise concerns about wrongdoing; to ensure that concerns are investigated in a timely fashion and appropriately; to ensure that wrongdoing is rectified; to protect whistleblowers and others affected by whistleblowing; and, importantly, to require employers to maintain procedures that facilitate whistleblowing.

A Labour Government would like it to be the legal duty of employers to protect whistleblowers, and would like that to be enforced. That would apply to all workers, irrespective of the nature of their position and whether they are paid; for example, it would include interns and volunteers. Protections would apply to those making the disclosure, whether they were a worker, a former worker, or were seeking work or undergoing training. I think I am right in saying that there is quite a consensus on that.

I want to talk about the patterns. As shadow Minister, I have been thinking about the themes in the experience of the whistleblower. The feedback is that the typical journey of a whistleblower looks like this: if the worker is inexperienced at whistleblowing, there is uncertainty about what to do and who to tell, as has been said. They often go to their immediate manager. The system response may be poor, and include ignoring or minimising the issues, deliberate delays, hostility and intimidation. It may include reluctant, ineffective or biased, tokenistic investigations, and deliberate attempts to exhaust and discourage the whistleblower through excessively lengthy and complex processes.

Intimidation may increase in severity; there may be counter-allegations, formal disciplinary proceedings against the whistleblower, suspension and dismissal. This is not even the full journey; we have to remind ourselves that all the whistleblower has done so far is report wrongdoing, misconduct or harm, yet their employment prospects are in serious danger by this point.

The whistleblower then escalates concerns externally to regulators. The system response is likely to be a full attack by this stage. If the whistleblower has not yet been dismissed, dismissal is almost certain, perhaps on trumped-up grounds, but probably on the lawful grounds of breakdown of employment relationship under the “some other substantial reason” route. At this point, the whistleblower’s employment prospects are likely to be damaged beyond repair. They are unlikely to obtain equivalent employment in the same field again. Regulators, oversight bodies and Government Departments are often part of the problem, and may turn a blind eye to the whistleblower’s disclosure and the fact that they have been suppressed and victimised. Sometimes they will even, outrageously, orchestrate the harm and suppression.

The Public Interest Disclosure Act 1998 kicks in only after the whistleblower has been harmed and, as has been mentioned, it allows the whistleblower to sue only for limited compensation, long after the event, and long after the public interest matters have been buried.

The Government continue to say that a review of whistleblowing legislation would be premature. Quite the opposite—it is well overdue. That is what those who have been affected by the failures of the legislation tell us, and it surprises me that some Members, on the Opposition and Government Benches, think that we know better than them. Whistleblowing legislation is about preventing disaster—preventing death or wrongdoing —so the legislation should be equally serious, and should provide appropriate pre-detriment protections for those who blow the whistle, and appropriate sanctions for those who are determined to punish and discount the voice of the whistleblower.

I end with a question. The motion refers to

“protection for a broader range of people”,

and widening the scope of the legislation. Job applicants, volunteers, interns, non-executive directors, public appointees, priests and ministers of religion, foster carers and members of the armed forces are not afforded protections for whistleblowing under the current regime. Have the Government any plans to extend the definition of “worker” to include people in those categories?