Whistleblowing: Big questions; Potentially bigger changes

The Government has launched the most comprehensive review [consultation] of the UK whistleblowing framework since the introduction of the Public Interest Disclosure Act 1998 (PIDA). The consultation asks a fundamental question: 

• Does the current regime still work, and if not, how should it be reformed? 

For organisations operating in the charity, education, health and social care, housing and local government sectors, the answer matters. Whistleblowing is often how concerns about patient safety, safeguarding, regulatory compliance, misuse of funds and governance failures first come to light. Getting it right is not just an employment law issue; it is a risk management and culture issue too.

So, what is the Government consulting on and what should employers be paying attention to?

A quick reminder: what is whistleblowing?

In simple terms, whistleblowing occurs when a worker raises concerns about wrongdoing that they reasonably believe is in the public interest. Workers who make a protected disclosure are protected from dismissal and other forms of detriment because they have spoken up. 

The consultation acknowledges that the workplace landscape has changed significantly since PIDA came into force in 1999 and seeks views on whether the current framework remains fit for purpose. 

Who should be protected?

The Government is considering whether whistleblowing protection should be extended to additional groups, including:

• charity trustees;
• non-executive directors;
• volunteers;
• job applicants (outside the NHS); and
• certain self-employed individuals. 

The rationale is straightforward: these individuals are well placed to identify wrongdoing but may not currently benefit from whistleblowing protections. 

Of particular interest to many of our clients will be the potential inclusion of charity trustees and certain self-employed individuals. The Government's initial view is that volunteers may be less likely to meet the criteria for protection, whereas some self-employed individuals may have a stronger case.   The case of MacLennan v The British Psychological Society [2024] in the EAT demonstrated how case law is already extending the protections (see our blog).

Is the ‘public interest’ test clear enough?

Since 2013, whistleblowers have had to show that they reasonably believed their disclosure was made in the public interest. The consultation notes ongoing debate about whether this test is too vague and asks whether further guidance would be helpful. 

The Government is not proposing to remove the test. However, it is seeking views on whether tribunals should be given clearer guidance on factors such as:

• the number of people affected;
• the seriousness of the wrongdoing;
• the nature of the interests affected; and
• the identity of the alleged wrongdoer. 

What counts as wrongdoing?

The consultation also asks whether the existing categories of wrongdoing remain adequate.

Among other things, the Government is considering whether the framework sufficiently captures concerns relating to:

• misuse of public funds;
• abuse of authority;
• corruption; and
• emerging issues such as AI-related risks. 

For public, charitable and regulated organisations, this is particularly relevant given increasing scrutiny around governance, use of public money and decision-making accountability.

Could reporting routes change?

One of the more interesting proposals concerns how disclosures are made.

Currently, workers who report concerns internally generally face a lower threshold than those who report to a regulator or other prescribed person. For regulatory disclosures, workers must reasonably believe the information is substantially true. The Government is asking whether this additional requirement discourages individuals from speaking up. 

The consultation also asks whether trade unions should become a protected disclosure route in their own right. 

This reflects concerns that some workers avoid internal reporting because of fears about reputation, career prospects or job security.

Mandatory whistleblowing procedures?

Perhaps the proposal with the greatest practical impact for employers is the suggestion of a statutory duty to have whistleblowing procedures.

At present, having a whistleblowing policy is recommended by Government guidance but is not a legal requirement. The consultation considers two options:

1. strengthened guidance; or
2. a legal obligation requiring employers to have appropriate and effective whistleblowing procedures. 

The consultation also explores enforcement mechanisms, including potential civil penalties for non-compliance. Current thinking suggests that any statutory duty could apply to all public sector employers and private sector organisations with 50 or more employees. 

Do employers need to take any action?

The direction of travel is clear. The Government wants to do the following;

• encourage reporting
• simplify the framework; 
• and strengthen confidence in whistleblowing processes. 

Employers may want to consider the following, considering the Government’s clear intentions;

• ensure whistleblowing policies are up to date and easy to access;
• check reporting routes are clear and trusted;
• train managers on handling disclosures appropriately;
• consider whether concerns can be raised confidentially; 
• assess whether organisational culture genuinely encourages people to speak up; and
• consider whether to read and respond to the consultation – it closes on 8 January 2027. 

Whatever reforms emerge, organisations that foster a culture of openness and trust are likely to be best placed to respond.

If you would like any specific advice or further information or assistance with your whistleblowing policies and procedures, please contact employmentandpensions@anthonycollins.com.