National Whistleblower Day

In 1998 the UK passed the first whistleblower protection law in Europe. Policy-makers and anti-corruption activists praised the Public Interest Disclosure Act (PIDA) as “revolutionary” and “the new gold standard.” One prominent activist said the “unbelievably fortunate” event was thanks to “a whole sequence of stars and planets in happy alignment.” PIDA, one employment lawyer said, will “protect you and your job.”

Two decades later, these hope-filled prognostications have been shown to be grossly over-optimistic.

Only 17 percent of employees fired after reporting wrongdoing win their unfair dismissal cases, according to an analysis by the European Center for Whistleblower Rights. The Berlin-based organization reviewed 115 PIDA cases published last year by UK Employment Tribunals.

Additionally, none of the three employees who sought interim relief won their Tribunal case, nor did the one employee who asked a Tribunal to be reinstated to their job.

The average PIDA case took 16.4 months to conclude – from when the retaliation began to when the Tribunal issued its ruling, the European Center found. One case persisted for six years. The average compensation for people who won their PIDA cases was £28,010 – slightly less than the average one-year salary in the UK.

Contrary to the employment lawyer’s promise in 1998 that PIDA would “protect you and your job,” these case files expose a system in which the deck is firmed stacked against whistleblowers. It is easy to understand why one victimized employee called the UK’s system a “dead-end labyrinth.”

Causal Links and Reason Shopping

PIDA grants judges vast subjectivity and leeway to reject whistleblower retaliation claims. Tribunals have ruled against employees even while acknowledging they met the legal definition of “whistleblower,” were acting in the public interest, and were unfairly dismissed. Some judges went so far as to acknowledge a connection between the whistleblowing and the dismissal, yet still, rule against the employee.

One judge noted a “clear causal link” yet ruled against the employee because his disclosure didn’t “materially influence the decision to dismiss.” Another judge said an employee “reasonably believed” his disclosure “was a matter of public interest,” but that “we are not satisfied there is any causal connection with any of his disclosures.” Another judge said an employee was unfairly dismissed but found no evidence his disclosure “played any part in the decision to dismiss.” In none of these cases did the judges explain how they knew the whistleblowing was not a factor in the dismissal – or what the threshold would be for demonstrating this.

In many other Tribunal cases, employees lost because they could not meet PIDA’s requirement to prove they were fired for being a whistleblower. This is a near-impossibility in real-life situations. Only the most foolish manager would confess to an employee that he or she was fired for reporting misconduct. Lacking such evidence, employees have great difficulty proving this was the reason.

Thus, the door is opened for employers to concoct phony grounds for firing whistleblowers. Tribunal case files confirm that employers routinely engage in “reason shopping” to win retaliation cases. Under PIDA, judges permit employers to utilize this tactic. While hunting for alternative reasons to fire whistleblowers, employers subject them to character assassination and professional smears.

Perhaps the most commonly utilized reason is the dubious claim that the employee was fired because he or she stopped getting along with their manager. It is natural to assume that a worker-manager relationship would deteriorate if a worker discovered evidence of a crime, reported it to supervisors, and perhaps took the step of informing regulators or the media. In such a scenario, it would be unusual if levels of trust and camaraderie did not diminish. Yet, judges frequently side with employers on this point.

In a series of Tribunal decisions published last year, judges ruled against employees who met the legal definition of “whistleblower” because of:

  • “a decline in the professional relationship”
  • “a mismatch”
  • “poor relationships” and a “dysfunctional situation”
  • “general concerns as to working relationships”
  • “the claimant’s behaviour” and “the working relationship had become untenable”

In one case, a Tribunal judge said an employee met the legal definition of “whistleblower” and was unfairly dismissed. Yet the judge ruled against the person because the “principal reason” for the dismissal was a lack of “mutual trust and confidence.” The judge acknowledged the relationship deteriorated because of the whistleblowing yet still ruled against the employee.

Time for Reform

There are even deeper and more fundamental problems with the UK’s whistleblower protection system.

PIDA’s drafters neglected to include actual mechanisms to stop or even deter reprisals. Because PIDA lacks this authority, it essentially serves as a trap for employees who think they will be shielded from adverse consequences. Rather, what they discover is that the road to compensation and redemption is long, costly, and, at best uncertain.

As proof of PIDA’s lack of protective measures, whistleblowers first must suffer repercussions at work before the benefits of the law kick in. The law only gives employees the opportunity to exercise their rights after they have suffered retaliation – and after their jobs and perhaps their careers have been ruined.

By way of analogy, rather than giving whistleblowers a seat belt to prevent them from being harmed in the first place, PIDA provides an emergency room in hopes of patching up the wounds.

A 2016 study shows PIDA contains only 37 percent of international standards for whistleblower protection legislation. When compared against 26 standards, PIDA scored a “0” in 13 of them, concluded the study by Thomson Reuters Foundation and Blueprint for Free Speech. This is well below what would be expected of the “gold standard” for protecting whistleblowers.

PIDA must be completely overhauled in order to meet these standards. If not, employees will continue to suffer reprisals – simply because they saw something wrong and reported it.