Whistleblowing Protections

Sarah Russell Excerpts

Tuesday 22nd October 2024 Westminster Hall

[Mrs Sarah Russell (Congleton) (Lab)]

I thank all those who have spoken before me in such an informative manner and to my hon. Friend the Member for Stoke-on-Trent Central (Gareth Snell) for securing the debate.

I have advised numerous whistleblowers throughout my career. Some themes emerge from the experience that speak directly to the points raised by a couple of previous speakers about the impact on whistleblowers when they realise there is something seriously wrong in their organisation and they speak up about it. I have found, particularly in the NHS, that there is an institutional reluctance—and I think I can understand it. I think it is psychologically extremely difficult for people to accept that their department might be systematically failing or sometimes actively damaging patients, and the result is that they tend to turn on the person blowing the whistle and to ostracise them. What follows is an investigation into that person’s behaviour or conduct as relationships deteriorate, and often then a dismissal under the term “some other substantial reason”.

There are five potentially lawful reasons for dismissal, including misconduct, incapability and so forth. One is “some other substantial reason” for dismissal. That phrase is really a catchall for, “There is some sort of decent reason for sacking this person”, but the case law has developed in such a way that “some other substantial reason” for dismissal can just be an absolute breakdown of relationships between people who work together—and that is almost always the case where there is a whistleblower. The result is that we have a massive gap in our law, whereby people who have blown the whistle are systematically being dismissed for “some other substantial reason”.

One of the most effective things we could do within the scope of the current system would be to outlaw the use of “some other substantial reason” dismissals in a whistleblowing framework, so that if someone has blown the whistle, there cannot be a “some other substantial reason” dismissal. There would still be the ability to dismiss for misconduct if there has genuinely been misconduct, but in the situations I have seen, that has usually not been the case; it is just that people have fallen out.

I think there is scope to improve whistleblowing protections in the current system. We could do it through amendments to the Employment Rights Bill, which is making its way through the House. In the longer term—I appreciate that this is not currently fiscally viable—but we could look at extending legal aid to whistleblowers. We could extend to whistleblowers the legal aid protection available to people on low incomes for discrimination claims; that would be in the public interest and would nicely back up the duty of candour that we have been talking about introducing. We could also look at whether the suggestions being made by my hon. Friend the Member for Stoke-on-Trent Central could be linked to the fair work agency, and whether we could in due course extend the powers of that agency to examine this issue.

It is a terrible thing to advise whistleblowers, because they are so distressed—certainly one of the most distressed client groups I have ever come across. Whistleblowing is typically completely career-ending for them, and the results for many are terrible. We should look at whether our unfair dismissal legislation is well placed to handle such matters. I again thank my hon. Friend the Member for Stoke-on-Trent Central for raising this topic for debate.