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Following the  Women and Equalities Committee report into sexual harassment in the workplace – which found the government, regulators and employers all failing to tackle the issue of sexual harassment in the workplace – Protect asks is the government taking enough action?

The government have pledged to bring in a Code of practice on sexual harassment for employers and look into options to better regulate NDAs, including introducing a standard clause explaining the limits of the agreement in plain English.

Also proposed is  extending the list of prescribed persons for whistleblowers to include the Equality and Human Rights Commission (EHRC).  This gives a new route for whistleblowers to raise concerns about sexual harassment with an organisation with some enforcement rights, and we support the extension.   The Government are also considering whether the Police should be included in the list – an interesting idea, but we’d argue that if the Police are to be prescribed, their remit shouldn’t be limited to concerns about sexual harassment alone.

However, despite the government’s claim that “the employment protections for whistleblowers can already cover disclosures of workplace sexual harassment”, we need to be clear that this is no simple remedy to the widespread problems identified by the #Metoo campaign.  When an individual suffers sexual harassment in the workplace, their usual remedy is through the internal grievance process.  To fall within the protection of the Public Interest Disclosure Act (PIDA), the individual raising a concern has to have a reasonable belief that the employer is breaching a legal obligation and that the disclosure is in the public interest.  It may seem self-evident that telling an external organisation – such as the EHRC – that sexual harassment has occurred should be a protected act – but it isn’t.  The law was changed to include the public interest test to stop individuals using PIDA to raise concerns about their own employment rights.  This may not be straightforward and will rest on the number of people effected, the seriousness of the harassment, who the harasser is and how seriously the individual is affected. While it is likely the test will have a broad application it is an additional hurdle for victims that does not exist in the Equality Act. If the test is not met,  a private grievance followed by an individual claim to the tribunal is still their only employment remedy.

But what of the new Code of Practice – surely that will make a difference?  Again, we welcome the proposal to introduce a statutory code, to give a strong steer to employers about what they should be doing to prevent sexual harassment in the workplace.  However, this should adequately consider how to support and encourage whistleblowers who speak up on behalf of victims. But without an enforcement mechanism, it remains with the individual to complain if the Code isn’t followed.  The government have proposed a wait-and-see approach to how tribunals respond to the Code – which isn’t likely to make bad employers tremble.  Even the threat of an uplift in a tribunal award for failure to prevent sexual harassment pales into insignificance when contrasted with the fines employers might face for breaching, say, GDPR requirements.  Sadly, the government haven’t agreed with the Committee’s recommendation of a mandatory duty on employers to prevent harassment –  a breach of which could lead to enforcement action by EHRC.   It is disappointing that the good practice in some sectors making whistleblowing arrangements mandatory  – such as in Financial Services – haven’t been followed here.

On the plus side we look forward to contributing to a number of the proposals that the government has accepted: the need for a wider public information campaign about legal rights, a review of the protection for volunteers and interns, and a consultation on the much misunderstood use of Non Disclosure Agreements .

 

 

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The Government has published legislation it describes as the ‘biggest package of workplace reforms for over 20 years’ – implementing 51 of the 53 recommendations of the Taylor review into UK modern economy workplaces.

Whilst welcomed – Protect see a missed opportunity for workplace reforms for whistleblowers.

The government review into working practices in the modern economy –  led by Matthew Taylor, chief executive of the Royal Society of the Arts, looked at seven key recommendations including how a worker was defined, and whether sick and holiday pay could be enforced.

The first positive Government announcement: “Extend the right to a day one written statement of rights to workers, going further to include detail on rights such as eligibility for sick leave and pay and details of other types of paid leave, such as maternity and paternity leave”.  We will be pushing the Government and Parliament to ensure that this statement also includes encouraging staff to raise whistleblowing concerns. This will help to alleviate low awareness among workers about their whistleblowing rights where 63% of UK workers either incorrectly stated there was no legal protection for whistleblowers or were unaware of the protection.

We also welcome the commitment to quadruple maximum employment tribunal fines for employers who are demonstrated to have shown malice, spite or gross oversight from £5,000 to £20,000.”  We would like this commitment to be extended so that Employment Tribunals are given the power to make recommendations to employers on how to improve their whistleblowing arrangements.  For example, where a case before them highlights a training need for managers, a weak whistleblowing policy or poor board governance. These could all be powerful additions to the tribunal’s menu of sanctions.

The Government have made a commitment to “legislate to improve the clarity of the employment status tests to reflect the reality of the modern working relationshipsbut there is no detail as to what Parliament will be asked to consider in this area. We welcome the intention to clarify this difficult area – there are already inconsistencies in how “worker” is defined for whistleblowing rights compared with other employment rights. The legislation is an opportunity to extend protection for many individuals including job applicants, students in many professions, volunteers, non-executive directors. (For a full list see our infographic).

Protect Head of Policy, Andrew Pepper-Parsons said, “These Government reforms represent modest reforms at best for whistleblowers because there are key issues missing from the proposals that need to redress the balance of power between employer and employee. This is an opportunity to improve important legislation, give a better framework for employers and raise awareness amongst workers of whistleblowing and their rights.”

Key missing reform issues:  

PIDA suffers from access to legal advice and representation is limited. These proposals do not address the issue that representation at tribunal can have a real effect on the outcome with many whistleblowers having to take their claim forward as a litigant in person.  Our research found 68 per cent of those lacking representation lost their case, while this falls to 53 per cent with representation.

PIDA is silent on standards expected from employers. These are inconsistencies in how regulators deal with whistleblowers and PIDA provides little in the way of legal guarantees. This includes both in terms of what a whistleblower should expect if they approach a regulator with concerns or guidance to organisations they regulate (except the Financial Conduct Authority who have created rules for banks).  We want to see real teeth in the proposals so that employers are placed under greater obligations to deliver better workplaces.

Legal threats to whistleblowers: There are a number of laws that make it an offence to disclose certain information (for example, Section 105 Utilities Act 2000). Such laws contain no public interest defence or gateway and will also mean that PIDA protection is not available. There is a worrying tendency for such laws to be used in the workplace as a means of suppressing concerns, pursuing or threatening whistleblowers. Such practices undermine the policy aims of PIDA to ensure concerns are raised by workers at the earliest opportunity. Legislative reform provides an opportunity to address this legal loophole.

No proposals to confront the misuse Non-disclosure agreements (NDA’s): It may well be that there are separate Government proposals in the pipeline on this issue, yet this is an obvious missing elephant. For whistleblowers 43J of PIDA makes it clear that a whistleblowing concerns cannot be gagged: the legislation allows individuals to raise public interest concerns outside the employment relationship where they would be protected under PIDA, but this is a little known or used section of the law. Yet due to low awareness around whistleblowing rights among UK workers this is often missed.  Alongside a reference to whistleblowing rights in the day one initial statement given to employees, we also propose clearer wording in law on this right, and a requirement on lawyers who are advising whistleblowers about settlement agreement to explaining this right more clearly.

The Taylor Review recommendations

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In June 1994, in small village in Northern Ireland, six Catholic men were shot dead at point blank range by loyalists, as they watched the World Cup in their local pub. The main shooter was accompanied by two others, and although within 24 hours the local residents had a strong indication of whom the murderers were, over twenty four years later British Security Forces have yet to charge anyone for the crime.

After years of being drip fed information, the families of those killed started to demand answers. Investigative journalists met with the families, people professionally involved in the case at the time and eye witnesses to search for the truth behind the failings.

“No Stone Unturned” a film by Alex Gibney, Barry McCaffrey and Trevor Birney explores the Loughinisland massacre and how it came to pass that such a tragedy was left unsolved for over 20 years.The film is the first published work to name the murderer suspects. Several newspapers have now followed. This incredibly brave step was taken with all due care: the journalists involved even warned the authorities several months in advance, so that protection may be offered to the named individuals. Why the authorities were not able to provide a transparent conclusion or logical methodology in the original case is not known. But by using information which was only a fraction of what was available to the state, journalists Barry McCaffrey and Trevor Birney demonstrated with conviction that the police had more than enough information to investigate and convict, they even had DNA evidence linking the main suspect to a balaclava worn at the scene of the crime.

The film – screened to a packed and passionate audience at the National Union of Journalists (NUJ) Headquarters earlier this month – highlighted several failings in the investigation. The lead investigator on the case was able to maintain his month long holiday plans the day after the murders took place. The getaway car, the largest piece of evidence relating to the case, was destroyed with very little explanation. Attempts to decipher the mysterious actions which had been taken were obfuscated and no clear answers were forth coming. Still, the families kept up their fight.

Eventually, in 2016, the Police Ombudsman produced a (secondary) report, which finally gave the families the truth they had been seeking for so long. The report found that there had been collusion between the police and the criminals. Unfortunately, it did not identify any individual officer as being at fault, and created no accountability for the failings.

The film highlighted the importance of two whistleblowers who leaked information to those in authority who they thought would know what to do with it. Unfortunately, it took the making of this film for the potential impact of the information they provided to be realised, and for the whistleblowers to know the risk they took was worth it in the end.

Shockingly, Barry McCaffrey and Trevor Birney are now being legally pursued for document theft, from the office of the Police Ombudsman, who denies having made a complaint of document theft. Perhaps Oscar-winning director Alex Gibney’s reaction reflects the majority of public opinion. In a tweet, he said the film had exposed the failure of police to properly investigate the massacre. “Police reaction? Re-open murder investigation? No. Arrest the truth tellers,” he wrote.

In a further twist, the original 2016 Police Ombudsman report was amended in March 2018 to further distance the main suspect, Ronald Hawthorne, from the wrong doing mentioned in the report.

Protect knows the value of open and honest journalism, even (and especially) when this reveals information which is embarrassing to the state.  We  commend the National Union of Journalists in their robust and compassionate support to these outstanding professionals and offer our support of Barry and Trevor, and will continue keeping a keen eye on any attempts to persecute them for their achievements. With deepest respect of, and support for, the families of those who were killed in Loughinisland.

By Laura Fatah, Adviser

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The start of a new year is a good time to address organisational change – and we at Protect are hoping to work with more and more organisations in 2019 to help improve trust and create a safer environment for whistleblowers.

5 common mistakes:

  • Thinking you’ve got it covered with a policy on your intranet
  • Lack of training for those receiving/handling concerns
  • Failing to give feedback to your staff
  • Poor communication and staff engagement
  • Senior management failing to endorse


We are offering a 20% discount on our 360 Benchmark tool throughout January
which focuses on three key areas – governance, operations and staff engagement – to assess whistleblowing or speak up arrangements.

“It can be hard for organisations to gauge whether their whistleblowing arrangements are effective – a policy on an intranet is not enough. The idea of the 360 benchmark is to help companies look at their culture and ask how much staff trust you when they raise concerns. It’s trying to move beyond ‘just the numbers of concerns’ and really transform cultures” explains Protect Development Director Jon Cunningham.

The 360 Benchmark was developed over 18 months by a team at Protect and a working group party made up of compliance and governance executives.  It measures how organisations engage with staff, how a company records and investigates employee concerns and evaluates written policy and accountability.  Upon completion, organisations receive a report identifying gaps in their procedures and how they have performed against similar organisations.

Since launching the 360 Benchmark tool in the summer, the Protect Business Support team has had extremely positive feedback from organisations who have completed it. Make 2019 the year of good governance for both your business and your staff.

If you are interested in discussing the 360 Benchmark 20% discount which will be available throughout January 2019, please contact the Business Support team

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An OFGEM whistleblower – Greg Pytel – has been told that he is unable to challenge the victimising behaviour of his employer in the Employment Tribunal after he raised public interest concerns about the implementation of smart meters.  He is now having to take his case to the Court of Appeal, at his own expense.

Current legislation makes it a criminal offence (sec 105 of the Utilities Act 2000) to disclose information about the utilities sector.  The offence is so widely drawn that it prevents a whistleblower from enforcing their legal rights, through the Public Interest Disclosure Act (PIDA), against victimisation or dismissal for raising concerns.

The Employment Tribunal originally found sec. 105 frustrated the ability for Pytel to get a fair tribunal hearing, and breached his right to freedom of expression. But the tribunal lacked the power to declare the sec. 105 officially ‘incompatible’ and read wording into the act, as the Human Rights Act allows, that would allow Pytel’s case to be heard.

The EAT stated that though it also lacked the power to declare the legislation officially ‘incompatible’, it pointed out that only the Government or Parliament could create an exception for whistleblowing under sec. 105.  It concluded that Pytel’s whistleblowing claim could not progress, even though on the facts stated at tribunal, the claim in absence of sec. 105 could have been heard.

Pytel will now have to take his case to the Court of Appeal who have the power to issue a formal declaration of ‘incompatible’ against sec. 105 and that his right to a fair hearing.

We at Protect have intervened in the case in support of Greg Pytel who is being prevented not only from bringing a claim but also from speaking openly about the concerns he has.  This case shows how secc. 105 has an incredibly wide reach and impact and we are calling on the Government to urgently amend the law to allow whistleblowers to both raise their public interest concerns, and enable them to enforce their legal rights.  It’s clear from the legal judgments that the courts are probably unable to make this change even when they declare the law incompatible with the ECHR.

Pytel said, “OFGEM now accepts that Section 105 prevents me from having a fair trial, contrary to my basic human rights, and – more importantly to the public – my concerns about the smart metering project can’t be examined. The Government themselves have nothing to say about this.

He added, “I am therefore left having to take the Government all the way to the Court of Appeal to appeal the judgment and get a formal declaration of incompatibility. I should not have to do so. This requirement puts a burden on me as an individual litigant to correct the government’s systemic problems at my own expense, systemic problems which should not have occurred in the first instance. It should be role of public authorities to avoid such systemic problems occurring, and to correct them voluntarily if and when they do.”

Protect Head of Policy, Andrew Pepper-Parsons said, “OFGEM’s admission that this aspect of the Utilities Act is unlawful, highlights the very real urgency for the Secretary of State to use his power to remove this legislation that unlawfully gags whistleblowers and denies them access to justice.

“Given that there are many statutes containing similar ‘gagging clauses’ – with criminal prosecution as punishment for breach – we at Protect will be calling on urgent action as soon as possible. ”

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Please be aware our advice line will have slightly altered hours over the holiday period.

  • Christmas Eve – closed
  • Christmas Day – December 25 – closed
  • Boxing Day – December 26 – closed
  • Thursday December 27 – 9.30-4.30pm
  • Friday December 28  – 9.30- 4.30pm
  • Monday December 31 – closed
  • Tuesday January 1 – closed

The Protect advice line  – 0203 117 2520 – resumes normal hours, 9am-6pm on Wednesday 2 January 2019.  During our altered hours, you can still contact us at whistle@protect-advice.org.uk 

Thank you and season’s greetings from all at Protect.

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