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UK fails to legislate on protecting whistleblowing partners

The government 'has dropped the ball', says Clare Murray 

26 June 2014

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By Manju Manglani, Editor (@ManjuManglani)

The UK government will not be taking legislative action to protect whistleblowing partners, despite calls for tighter legislation.

In the results of the Whistleblowing Framework Call for Evidence, it revealed that a "light touch" approach will instead be taken to whistleblowing reform.

Minimal changes to the law will be made as part of the "package of measures" put forward, which include improving awareness of the benefits of whistleblowing.

Commenting on the news, Clare Murray, managing partner at employment law firm CM Murray, said: "It is extraordinary that legislative action is not being taken to recognise clearly in statute the rights of LLP members to whistleblowing protections."

"This decision by the government has also left unanswered the issue as to whether partners in general partnerships are covered by whistleblowing protections. It means that it is likely to fall to another claimant to take this issue all the way back to the Supreme Court to work out if partners should be protected too. The government had the opportunity to resolve that issue now but has dropped the ball."

Continued Murray: "In a society where we are seeking to take the lead globally on combating corruption, no one should be placed in the position where they have to decide between protecting their livelihood or doing the right thing and blowing the whistle. That is the choice faced not only partners, but also by others in business such as non-executive directors and interns, as a result of the government's decision not to legislate to extend whistleblowing protections to them."

The government's decision comes a month after the Supreme Court unanimously allowed the appeal by Krista Bates van Winklehof in Clyde & Co LLP and another v Bates van Winklehof [2014] UKSC 32.

In the judgment, the court held that the former equity partner should be considered a 'worker' under the Employment Rights Act 1996 and is therefore entitled to claim the protection of its whistleblowing provisions.

The changes proposed by the government to improve whistleblowing protection include:

  • improved guidance on how whistleblowing works for employees;

  • a new best practice guide to whistleblowing policies for employers;

  • reviewing the effectiveness of the current process for referring a case to the appropriate regulator;

  • the introduction of a duty on prescribed persons (such as regulators) to report annually on the number of cases they have received and whether these have been investigated;

  • updating the prescribed persons list, including designating MPs as prescribed persons; and

  • giving whistleblowing protections to groups currently excluded from these (such as student nurses). The government noted that it will "keep this area under review and consult if further changes are considered necessary".

Work to implement these changes will begin immediately, with the change on disclosures to MPs already in place and the inclusion of a reporting duty on prescribed persons in the Small Business, Enterprise and Employment Bill.

Employment relations minister Jenny Willott said the changes "will make the whistleblowing process more transparent and more effective. They will help employees speak out about wrongdoing without fear of reprisal, and help employers know how to act on these reports."

Commented Audrey Williams, an employment partner and head of discrimination at international law firm Eversheds: "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.

"Employers have been wary of increased regulation and mandatory requirements in this area, sensitive to any significant shift in the balancing of interests which 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 this week. Indeed, some may be wondering just how the government plans to bring about the cultural changes it champions."

Concluded Williams: "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."



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