Over recent days, there have been media reports about a financial regulator which identified an internal whistleblower, contrary to its own policy and the wishes of the person involved. Whilst this is bad for the reputation of the organisation and for the well-being of the person involved, the case serves to highlight why it is important that regulators follow the rules that they expect others to uphold. Here we comment on the significance to the public interest of this simple maxim.
Many regulators in the UK are ‘prescribed persons’ under the Public Interest Disclosure (Prescribed Persons) Regulations 2014. The reason why organisations become prescribed is because the Government believes that they are best placed to investigate allegations of malpractice made by workers about their own organisation. To qualify for statutory protections, the worker’s disclosure (sometimes referred to as whistleblowing or speaking-up) must involve one or more of the six public interest criteria specified in Part IVA Employment Rights Act 1996 and, crucially, must be made to the appropriate prescribed person. For example, in England, a disclosure about health or safety should be made to the Health and Safety Executive; a disclosure about environmental pollution should be made to the Environment Agency, and so forth per the Regulations. Some prescribed persons have a UK-wide remit, but others’ mandate is limited to one of the UK’s constituent nations.
Whilst there is no suggestion in the recent media articles that the regulator disclosed the identity of an external whistleblower (i.e., in the regulator’s role as a prescribed person), it is nevertheless concerning if the identity of an internal whistleblower has been inappropriately revealed. One can readily imagine the chilling effect that such news stories could have on anyone – whether inside the regulator’s organisation or outside it but reporting to it as a prescribed person – currently contemplating making a whistleblowing disclosure in the public interest. The law is very specific about reporting pathways and public confidence in regulators must remain high accordingly.
Given that the consequences of ‘outing’ a whistleblower are obvious, why does it happen? There are various theories including where a senior person who has considered the internal disclosure believes that it is without merit, and then moves into a more ‘defensive’ mindset if the disclosure is repeated, particularly outside the organisation. The defensive mindset is usually directed at protecting the organisation’s reputation by neutralising the ‘threat’ posed by the whistleblower’s disclosure. Yet, the law is clear that the whistleblower need only have a reasonable belief that their information ‘tends to show’ that any one of the six public interest failings has occurred, including where the affected organisation does not accept the whistleblowers contention. Whilst it is easy to understand why organisations become defensive, it can be just a short step from that point to causing detriment to the whistleblower who has the right under Section 47B Employment Rights Act 1996 not to suffer detriment as a result of making a protected disclosure.
GSA Global has commended effective whistleblowing arrangements as part of the suite of human, physical and cyber defences against insider risks and threats. It is to be hoped that the recent media commentary has not dissuaded workers from speaking up – it is in everyone’s interests that workers are able to. The reportage should help employers and regulators consider their responsibilities in balancing the public interest of protecting their organisation’s reputation versus protecting workers making disclosures in the reasonable belief that relevant failings have occurred.
