Lawyers’ panel wants laws making it illegal for employers to punish staff who speak out

By Frederika Whitehead | 1 March 2013

Campaigners have assembled a panel of lawyers to draft legislation to give greater protection to whistleblowers.

The lawyers will consider whether the current law on public-interest disclosure should be turned on its head, making it a crime not to disclose wrongdoing.

The group says that its launch comes amid mounting anger over the restrictions on would-be whistleblowers, such as the gagging clauses in some NHS contracts that prevent medical staff from speaking out about instances of poor care.

“Whistleblowing is like going into combat” – Ian Foxley, chairman, Whistleblowers UK

The report of an inquiry led by Robert Francis into hundreds of premature deaths from sub-standard care at Stafford Hospital, recommended that staff should be obliged to report poor care when they see it.

One of WBUK’s founders, Gavin MacFadyen, described the Public Interest Disclosure Act (PIDA) – which is supposed to protect whistleblowing – as inadequate.

WBUK believes that PIDA is beyond repair and, said MacFadyen, should be “completely abolished and a proper law put in its place.”

Jo Swinson, employment minister, appears to feel the same way. A fortnight ago, she wrote to MPs and peers promising to amend the legislation radically. WBUK hopes that she will consider replacing it with their proposed legislation.

PIDA was introduced by the Tony Blair’s government in 1998, and updated in 2007. It offers whistleblowers the right to sue for constructive dismissal if they are penalised for reporting wrongdoing at work.

But MacFadyen says that, in reality, it does little to protect whistleblowers from “abuse and retribution”. He says that WBUK’s “panel of top-rank international lawyers” will be asked to construct legislation that would “heavily penalise retribution and victimisation.”

The proposals would be inspired by the best legislation from around the world, he said, and the group would lobby hard to persuade ministers to adopt it.

Other whistleblowing campaigners have warned that PIDA will be further constrained when the Enterprise and Regulatory Reform Bill, being steered through Parliament by Vince Cable, business secretary, becomes law. It would introduce a subjective public-interest test, so whistleblowers who bring claims for constructive dismissal would have to prove to an employment tribunal that the release of the information was truly in the public interest before anything else is decided.

Eileen Chubb, a care worker who mounted a case against her employers under PIDA, thinks that the act should be scrapped, saying: “I have seen the protection that PIDA offers, and it is worse than no protection because you believe that you are protected when you are not.”

“We did everything that the law asks whistleblowers to do, and still it was not enough.”

WBUK’s chairman, Ian Foxley, the former lieutenant-colonel who made allegations of corruption in a huge defence deal, said that whistleblowing is “an immensely traumatic experience” for many people.

Whistleblowers often lose their jobs, their income and sometimes their houses, he said. Marriages are strained, while lengthy court battles are fought with the organisation that the whistleblower seeks to expose.

“Whether you know it or not, you are damaged by it. Whistleblowing is like going into combat.”

When you come out of it, you have gone through an intense period of stress . And when you relax, all of a sudden you hit a depression, and you have to recover from that and rebalance your life.”

MacFadyen said that the “bottom-line purpose” of WBUK’s new draft legislation, besides protecting whistleblowers “from hurt and victimisation for doing the right thing,” was to encourage more people to report wrongdoing.

Another support organisation for whistleblowers, Public Concern at Work, has established a ‘Whistleblowing Commission’ that aims “to examine the existing arrangements for workplace whistleblowing and make recommendations for change.” The commission this month launched a 12-week public consultation on whistleblowing.

The commission is chaired by the former Appeal Court judge, Sir Anthony Hooper. Members include Sarah Veale, head of employment rights at the Trades Union Congress; Gary Walker, former chief executive of an NHS hospital trust and whistleblower; Michael Woodford, former Olympus chief executive and whistleblower, and Lord Burns, chairman of Santander and Channel 4.

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