Assessing Whistleblower Protection: The 2014 Public Concern At Work Report

The whistleblowing protection charity ‘Public Concern at Work’ (PCAW) has published its most recent report following an analysis of Employment Tribunal cases made between 2011-13.

The charity takes into account how the law protecting whistleblowers has performed in accordance with The Public Interest Disclosure Act 1998 (PIDA), along with a general exploration of all employment Tribunal activity.

The report findings

For this report the PCAW reviewed 2,969 cases encompassing both full and preliminary hearings. Just 1,260 of them were final rulings made following the full hearing process. A mere 12% of these cases were successful on grounds relating to PIDA authority while 26% of them were won on account of other evidence. The remaining 62% cases were either lost by the claimant or thrown out by the Tribunal.

Positive changes

2011-13 recorded a total of £7.3 million awarded to claimants as a result of whistleblowing cases, although this is a mere fraction of the overall amount as most claims are settled before a Tribunal is considered necessary.

The PCAW found that officials across all areas of UK employment are increasingly likely to report acts of whistleblowing to parliament, which is a clear sign that employees are now more than ever feeling comfortable enough to speak out without fearing the consequences of their actions.

Bad faith increase

A major change recorded by the report is that 11% of all whisteblowing cases involve employers regarding their employees to have acted in ‘bad faith’; an act that supposedly shows disregard for the business.

This figure is a considerable increase over the last PCAW assessment in 2009, and shows that employers are focusing too heavily on employee motives at the expense of assessing whether each act of whistleblowing will be for the benefit of public interest.

Such employer attitude is what led PCAW to encourage the government to dismiss the ‘Good Faith’ test from employment law, which would effectively remove employer claims of bad faith. This act has been somewhat successful as the law has now been altered so that employers focus on employee victimisation without undue judgement on their agenda.

Issues relating to discrimination and harassment in the workplace were found to be the most frequent complaint involved with whistleblowing claims.

Claimant concerns

A major area of concern is that a staggering 56% of claimants do not have legal representation, making this group less likely to be successful with any claim they make.

Making matters worse is the possibility that Tribunals are setting the costs at a far higher rate for claimants than for respondents, which the report alleges is an act of punishment from the Tribunal rather than a simple requirement of Tribunal charges.

The effect of fees

As predicted, the law stating that claimants must be responsible for the bulk of Tribunal fees has led to a lower amount of claims being put forward, with a 20% drop in whistle-blowing claims reported. The combined cost of whistle-blowing cases between 2011-13 were found to be in excess of £750 million.

Interim relief

Interim relief allows an employee to launch a reinstatement claim as long as there’s clear evidence that a second hearing may result in the original ruling being overturned. This application must be made within seven days of the dismissal date. If successful, the Tribunal can issue a ‘continuation order’ which instructs the employer to continue paying the claimant’s wages until the next ruling is made.

Interim relief made up a considerable amount of the cases reviewed by the PCAW, totalling 57 of the 2,969 claims. However, only 7% of these cases resulted in success for the claimant.

Whistleblowing claims by sector

PIDA is vital for protecting UK employees in many different sectors and industries. The report found that 66% of all cases came from the private sector, with the health and care sectors generating 21% of the total number of whistle-blowing cases brought to Tribunal, although the report notes that the majority of these cases are likely to be resolved swiftly.

The education sector has also seen an increase in PIDA claims since over 2009, rising from 5% to 7% of all cases. A possible reason behind this increase is the lack of a local governing authority overseeing the increasing volume of academies and free schools around Britain.

Other important discoveries found by the PCAW include that issues of workplace safety account for 12% of all whistleblowing cases, and that 9% of all cases involve claims of financial misconduct.

Further analysis

The report also reveals that the overwhelming majority of whistleblowers (91%) first raise their concern within their place of employment. Although, in 81% of cases where whistleblowers raise their concerns the claim is not expressed to the employer directly.

The PACW notes that a fully comprehensive legal review of all data analysed in their report is made impossible due to the lack of access to an open register of claims.