Whistleblowing guidance is needed, says Eversheds’ Audrey Williams

The government has published the results from its call for evidence regarding current whistleblowing laws and, to the surprise of many, reveals a particularly ‘light touch’ approach to further change. Audrey Williams, employment partner and head of discrimination at Eversheds, has commented on the announcement.

She said: ‘The subject of whistleblowing has attracted much attention in recent months. So many employers had been awaiting a government response to the various calls for change with interest, to understand what additional rights workers are to be afforded and the extent to which they might now be forced to take action.’

According to Williams, those employers will be relieved to learn that the response reveals that little further legal intervention is deemed necessary, particularly so soon after last year’s changes. She said: ‘The government believes what is needed now is a shift in culture, away from negative perceptions and towards better understanding of the law, as well as the benefits of compliance. Its focus is therefore upon improved guidance and steering employers towards positive behaviours, rather than further prescriptive measures.

‘At the heart of the limited changes is improved guidance. The government has committed to work with appropriate bodies to develop new guidance, principally to dispel misunderstandings such as a belief among workers that the legislation provides a protection, not merely a remedy, and, among employers, that it concerns only the matter about which a disclosure is made, not the detriment to an individual. This is to be supplemented by a legal requirement for prescribed persons to report annually upon whistleblowing and a clearer, more accessible list of prescribed regulators and other bodies to whom whistleblowing can be reported legitimately.’

Williams went on to say that the government had pledged to take the conclusions of the Public Concern at Work (PCAW) Commission into account in its response but, while there is consensus that greater guidance is needed for employers, the approach revealed by the government steers away from many of PCAW’s recommendations and from increased legislation.

‘Employers have been wary of increased regulation and mandatory requirements in this area, sensitive to any significant shift in the balancing of interests that might encourage misguided or spurious claims or increased bureaucracy. Even so, many will be surprised that what has proved a tortuous process, involving numerous expressions of opinion, has culminated in the conclusions [revealed last week]. Indeed, some may be wondering just how the government plans to bring about the cultural changes it champions.

‘The answer to that question may well lie in changes already in force, namely the introduction of vicarious liability on the part of employers for detrimental treatment of whistleblowers by colleagues and the potential for personal liability of managers. Employers who take this latest announcement to mean they are off the hook and need do nothing do so at considerable risk.’