Viscount Younger of Leckie
Main Page: Viscount Younger of Leckie (Conservative - Excepted Hereditary)Whistleblowing at Work
Viscount Younger of Leckie Excerpts
The Parliamentary Under-Secretary of State, Department for Business, Innovation and Skills (Viscount Younger of Leckie) (Con)
My Lords, I am grateful to the noble Lord, Lord Wills, for initiating this important debate. As we have heard, whistleblowing is a sensitive issue which continues to be in the spotlight, bringing public matters of concern to our attention.
The noble Lord, Lord Wills, my noble friend Lord Phillips and the noble Lords, Lord Low and Lord Young, highlighted some examples—in the case of the noble Lord, Lord Young, a personal example—of incidents or tragedies that may well have been avoided if those people who had spoken out had been heard and some action taken. The noble Lord, Lord Wills, raised a number of questions, and I will certainly attempt to answer them all during this debate. If I fail to do so, I will write to the noble Lord and copy in all noble Lords who have contributed today.
As noble Lords will be aware, the Public Interest Disclosure Act was introduced in 1998 to provide protection in the workplace to individuals who make a disclosure which is in the public interest. The noble Lord, Lord Wills, described it, correctly, as “landmark” legislation. Where disclosures are made in good faith and in the specified way, the law protects the whistleblower from unfair dismissal, from being victimised by the employer or from otherwise suffering a detriment at work.
Last July, the Government renewed their position in support of the important role whistleblowing can play in a workplace by further strengthening the legislation. Through the Enterprise and Regulatory Reform Act, we made a number of changes to the whistleblowing framework. We introduced a public interest test, which requires an individual who brings a claim at an employment tribunal to show that they had a reasonable belief that their disclosure was in the public interest. That brought the law back in line with its original intention.
We made an amendment to the good faith test so that it is relevant to remedy and not liability, meaning that it affects the compensation an individual may get if they win their case rather than the outcome of the case itself. Previously, if an individual was unable to show they had made their disclosure in good faith at an employment tribunal, their case could fail. Now, even if an individual is unable to demonstrate good faith, they can still win an employment tribunal claim. However, any compensation awarded in respect of that claim may be reduced by up to 25%.
We also introduced vicarious liability, which ensures that an individual who has suffered a detriment from a co-worker as a result of blowing the whistle can bring a claim against both the co-worker and the employer, who may be vicariously liable for the actions of the co-worker. We made an amendment to the definition of “worker” to include certain contractual arrangements in the NHS to ensure that certain NHS workers, including GPs, would qualify for the whistleblowing protections. We also inserted a power enabling the Secretary of State to make further changes to the definition of worker by secondary legislation, so that the law can be kept current in this respect. To echo the words of the noble Lord, Lord Low, many of those changes are a result of the hard work of groups such as Public Concern at Work—which the noble Lord is speaking for today—that bring important issues to the attention of the Government.
During the passage of the Enterprise and Regulatory Reform Bill, the Government also committed to reviewing the whistleblowing framework through a call for evidence to identify whether further changes were required to improve the effectiveness of the legislation. The call for evidence was held between July and November last year, and officials in the Department for Business, Innovation and Skills are currently analysing the submissions. It involved a thorough process where discussion sessions were held, meetings with interested parties took place and responses were submitted by 81 individuals or organisations. My noble friend Lady Browning stated that she hoped this would be a blueprint for the future, and I hope so too. As part of its analysis, the department is taking into account all the submissions, including the recommendations made by the PCaW commission. I have had sight of the initial analysis produced by officials. Many of the issues raised here today by noble Lords and by the PCaW commission’s report have been taken into consideration.
My noble friend Lord Phillips spoke passionately, focusing particularly on enforcement. I do not wish to pre-empt the Government’s response, which I believe will be published before the Easter Recess—which I hope answers the question from the noble Lord, Lord Young—but it might be helpful if I outline for your Lordships today some of the key issues that have been established through this process.
First, we have established that there is a level of basic misunderstanding in relation to the provisions acting as a protection against detriment rather than providing a remedy once that detriment has occurred. Secondly, there is a high level of concern that the issues that are raised by whistleblowers internally to employers rarely become the focus of the employer’s attention. The focus tends to be about the existing working relationship between the worker and the employer. For example, if a concern is raised with an employer about inconsistent safety practices witnessed on a worksite, the expectation of the individual would be for the employer’s focus to be on the concern that they have raised, not on scrutinising the individual’s employment history as a way of deflecting attention from the concern itself. As my noble friend Lady Browning said, the focus should be on the issue, not just on the process.
Thirdly, the culture around whistleblowing seems to be the driving force behind negative responses to disclosures and the resulting victimisation or detriment that the whistleblower may suffer. Fourthly, it is of concern to the Government that practices and standards for handling whistleblowing disclosures made externally—to regulators, for example—are inconsistent across organisations, with a disclosure often negatively received. My noble friend Lady Browning made a particular point of this issue, while my noble friend Lord Phillips spoke about beefing up the power of the regulators.
I want to say a few words about regulators, because the Government recognise that there is more that the regulators could do to reassure the whistleblower that the disclosure is being dealt with, given that the whistleblowing legislation is designed to deal with the detriment that a whistleblower may suffer rather than the issue of the disclosure itself. There is a challenge here for the Government to identify an appropriate solution in this area, but I assure the Committee that efforts will be made to do so.
This is not a new issue to us and we are considering how to address it in practical terms. The answer here will most likely fall to addressing cultural behaviours—the noble Lord, Lord Young, mentioned the important point that there is a close link between cultural behaviours and ethics—as well as through the legislative framework itself. Obviously we want to ensure that the level of understanding is correct and that individuals are willing to speak out without fear of reprisal. However, we also want to help business to understand the benefits that whistleblowers can bring to an organisation through helping to tackle corruption and malpractice by aiding the early detection of issues so serious that they can destroy businesses or even threaten life. The Government believe that the most effective way to do this is by setting direction and sharing best practice while giving employers the space to get it right in the way that works best for their organisations. Mandating best practice through statutory measures is not necessarily the best means to achieve the cultural change that is needed.
As I have already said, it would be imprudent and inappropriate of me to pre-empt the government response. However, I assure the Committee that a thorough review of the framework has taken place through the call-for-evidence process and that the outcome of the exercise will be available shortly. That is as far as I can really go in answering the question about timing from the noble Lords, Lord Low and Lord Young. We will continue to work with organisations such as PCaW to implement any changes that may come about as a result of the response to the call for evidence.
My noble friend Lord Phillips asked how many cases of fraud have been prosecuted. We have statistics for how many claims have been brought at employment tribunals by those who have suffered a detriment as a result of blowing the whistle. However, we are unable to confirm the number of fraud cases that have been prosecuted as a result of those disclosures. I will be very happy to try to establish the number and to write to the noble Lord on that point.
The noble Lord, Lord Wills, who has been very patient, raised a number of points that I will address. First, on the matter of codes of practice, the Government agree that guidance on best practice needs to be improved to drive up standards and consistency across all organisations. Indeed, there are many examples where non-statutory guidance is an effective tool for ensuring certain standards within industries or sectors. For example, there is the fair access protocols advice that the Department for Education has developed to provide advice to help local authorities and schools understand their obligations and duties in relation to the schools admission code.
Furthermore, there are industry codes of practice, such as those used in the oil and gas industry, which are an effective means for self-regulation within a sector. Those examples demonstrate that statutory codes and guidance are not always required to drive certain behaviours, compliance and standards. However, as this is a matter that has come up in the call for evidence, I can assure noble Lords that the Government are currently deciding the best approach for ensuring that standards for whistleblowing are consistent.
The noble Lord, Lord Wills, and my noble friend Lord Phillips asked if the Government will do anything to address the issue of whistleblowers becoming blacklisted as a result of making disclosures, which was an important point. The Government are clear that blacklisting is a totally unacceptable practice and do not support it. Individuals who believe that they are being excluded from employment because of a blacklist should seek redress in the county courts in England and Wales, or Court of Session in Scotland, under the Employment Relations Act 1999 (Blacklists) Regulations 2010. While there are protections in place for this type of treatment, there is more to be done than just leaving individuals to rely on a legal protection.
The noble Lord, Lord Wills, asked about adding additional groups to the definition of worker. We are aware of some of the groups of people; noble Lords have raised groups that have been identified as not qualifying for whistleblowing protection in the event that they make a disclosure. The provisions do not definitively exclude some members of those groups. However, the Government are again looking at this issue and hope to strike the right balance to include those where there is clear detriment suffered and the appropriate remedy for address.
The noble Lord, Lord Wills, asked about the anti-gagging clause. The Government believe that the legislation on the invalidity of the gagging clauses is clear. However, these are not applicable in respect of a disclosure. The guidance around that issue will be updated to make it clear. In addition, he asked whether the Government will consider adding trade union representatives. The answer is that any further changes to the prescribed persons list will be considered at a point when the list is next revised.
The noble Lord, Lord Wills, asked about claim referrals. The Government are looking at the system of referrals in the employment tribunals as part of the call for evidence and will report on that in due course.
I fear that I am just out of time. There are a couple of questions that I certainly will endeavour to answer by letter to the noble Lord, Lord Wills, and, indeed, any other noble Lord who asked a question.
I hope this reassures noble Lords that the Government have been listening to a wide range of views on this important matter and that they will be taking steps to address these issues where possible.
Finally, I will be happy to send a copy of the government response when it is published—and I have said that that will be soon—to all those taking part in this important debate.