This article was written by Professor David Lewis, Middlesex University Professor of Employment Law and convenor of the International Whistleblowing Research Network.

Many workers will remain silent about serious wrongdoing when legislation affecting employment protection for whistleblowers comes into force – as I detailed in evidence submitted to the Whistleblowing Commission recently.

The Enterprise and Regulatory Reform Act 2013 will give whistleblowers statutory protection only if the information they disclose passes a ‘public interest’ test. This will increase uncertainty amongst would-be whistleblowers because they will only know if they get protection after blowing the whistle and after an employment tribunal deems it is in the ‘public interest’.

It will be very difficult to advise workers in these circumstances and without firm assurances they may choose to remain silent about serious wrongdoing. If this happens, the ‘public interest’ test will clearly not coincide with society’s interest.

Significantly, the new test will not sit comfortably with existing employer procedures, especially in the private sector. Research shows that many of these include a “good faith” test but not one of public interest. The uncertainty created by the new test will be compounded by the fact that, as a result of other provisions, legal aid and advice are no longer available for employment matters and fees for taking a claim to an employment tribunal are being introduced later this year.

More positively, I suggested to the Commission that employers should be required by law to have whistleblowing arrangements which comply with the minimum standards set out in the BSI Code 2008. Another possibility would be to oblige employers to specify the people to whom staff can apply for the purpose of raising a concern about wrongdoing. To bolster this, it might be useful to provide that any contractual duty to report wrongdoing would be unenforceable unless the employer had previously informed workers of the arrangements for doing so.

In answer to a question about the desirability of introducing rewards as an incentive to whistleblow, I noted that one reason why a reward system is popular in the US is that it focuses attention on the wrongdoing (albeit financial) rather than the messenger and the connection between the disclosure of information and any retaliation suffered.

Another advantage of financial rewards is that they send out a positive message – that whistleblowing about wrongdoing is desirable in a democratic society. On balance, however, I prefer an award to a reward system. Rewards may be complicated to administer if they are tied to a percentage of financial savings made or fines levied. In addition, what type or level of reward should be made in cases of non –financial wrongdoing? The primary purpose of awards would be to recognise the courage of the discloser and they could be non-pecuniary.

In my view, the current UK whistleblowing legislation would be improved if it acknowledged that there are two main reasons why people are reluctant to report wrongdoing. In addition to fear of reprisals is the suspicion that the wrongdoing will not be rectified. I believe that whistleblowing statutes should have broad objectives which include the following:

• To encourage workers to disclose wrongdoing;
• To ensure that concerns are investigated by appropriate bodies and feedback provided to relevant people;
• The establishment of a new specialist body (a public interest disclosure agency) to advise and assist both potential and actual whistleblowers.

It might also be helpful to extend the powers of employment tribunals as well as encouraging both claimants and workers to engage in alternative dispute resolution. These tribunals can only decide if there has been a detriment or dismissal and have neither the duty nor power to investigate whether or not wrongdoing has actually occurred. To the extent that compensation may not be the sole or principal objective of claimants, workers may be frustrated by the current inability of employment tribunals to recommend that employers take remedial action.

The processes of conciliation, mediation and arbitration may enable the allegations of wrongdoing to be explored and could well be taken more seriously by claimants when tribunal fees are imposed later this year. Not only can alternative dispute resolution methods avoid crude win–lose situations and reduce expense but they may also offer more constructive solutions to the practical problems involved.

Finally, I suggest that people should have statutory rights both to refuse to participate in wrongdoing and to disclose information about it. In relation to the latter, employers and other recipients of concerns should be obliged to ensure confidentiality, where requested, as far as is practical.