Speak up: Protecting whistleblowers in the workplace

Employers and management around the world are actively responsible for the safety and wellbeing of their workers, complying with laws on workers’ rights including pay, leave, disabilities, and whistleblowing.  

In this article, we outline the definition of whistleblowing and who’s protected, the laws established in Europe, the UK, and the United States on protecting whistleblowers from unfair dismissal or treatment, and what employers should consider when confronted with this policy.

What is a whistleblower?

Simply, a whistleblower is a worker who has reported a wrongdoing, usually in the workplace. This is typically referred to as a ‘disclosure in the public interest’. Whistleblowing, therefore, is the act of reporting a misconduct.  

In 2002, a former FBI translator was fired for attempting to report coverups of security issues, espionage, and incompetence. After attempts to be heard were silenced, the former employee founded the National Security Whistleblowers Coalition (NSWBC) to lobby congress and aid other whistleblowers with legal assistance. 

In 2013, whistleblower Edward Snowden exposed a National Security Agency (NSA) surveillance program, and years later, the program was ruled unlawful. Though the NSA denied they were knowingly collecting data from private phone records, Snowden leaked highly classified information, exposing evidence of their wrongdoing. At the time of writing, Snowden is facing espionage charges. 

By law, workers are protected from being treated unfairly or losing their job due to whistleblowing. The types of workers typically protected include: 

• An employee — a police officer, NHS worker, office employee, factory worker 
• A trainee — student nurse, student midwives or apprentices 
• An agency worker 
• A member of a Limited Liability Partnership — someone running their own business 

They’re protected from the beginning of their employment to even after they’ve left the company or employer. For example, it’s against the law for an employer to offer an inaccurate job reference after the worker made a disclosure during their employment.
 

What is considered whistleblowing? 

Whistleblowing is a complaint which directly affects other people — for example: the general public. Workers can disclose issues that have happened in the past, are occurring currently, or are likely to happen in the future.  

Examples of whistleblowing are typically classified as: 

• A criminal offence — such as bribery 
• Reporting if someone is in danger — such as contaminating office food or toxic emissions at the workplace 
• Reporting if an act is a risk, or will cause damage, to the environment — generating pollution or waste through improper disposal management 
• A miscarriage of justice — if a staff member has been fired for a computer error, for example 
• If the company is breaking the law 
• If you believe someone is hiding a wrongdoing or illegal act 

By contrast, personal grievances, such as bullying, harassment, or discrimination, aren’t covered by whistleblowing policies, and employees won’t be subject to whistleblower protections for a personal complaint.

Whistleblowing protection legislation

Europe, the UK, and the United States have all implemented legislation beyond their regular employee rights laws to specifically protect workers reporting wrongdoings at work from any unfair or biased treatment during and after their employment.
 

EU

EU Whistleblower Directive

The EU Whistleblower Directive 2019/1937 was established to provide protection for those exposing breaches of EU law. Rather than laying out an overarching structure, the directive mandates that all EU companies with 50 or more workers must implement their own internal reporting policy for whistleblowing. This means each Member State may follow a different structure for whistleblowers, so employers will need to synchronize their company’s policy with the resident country’s overall law. Additionally, all financial market participants and companies vulnerable to money laundering or terrorist financing, regardless of size, must have internal reporting channels. 

Whistleblowers who report breaches of EU law will be protected from dismissal, suspension, demotion, other forms of job-related discrimination, and non-job-related discrimination such as the person’s reputation on social media, and psychiatric or medical referrals. The law covers current employees, former employees, subcontractors, shareholders, suppliers, job applicants, and third parties.  

UK

Public Interest Disclosure Act

The Public Interest Disclosure Act 1998 (PIDA) in the UK protects whistleblowers from unfair and negative treatment. It falls within the Employment Rights Act 1996, which establishes the legal rights of employees, with particular attention to dismissal, parental leave, and redundancies.  

PIDA was established to “protect individuals who make certain disclosures of information in the public interest; to allow such individuals to bring action in respect of victimization; and for connected purposes.” By law, workers can’t be subject to negative treatment or dismissed as a result of whistleblowing.  

If an employer dismisses an employee for whistleblowing, this would be considered an automatic unfair dismissal, for which employees can claim an employment tribunal, risking reputational damages and additional compensation to the employer and company. Similarly, an employer can’t begin treating the worker unfairly — for example, reducing their hours or pay, bullying or harassing them for their whistleblowing, or turning down reasonable requests without reason.  

US

The Whistleblower Protection Act

The Whistleblower Protection Act 1989 (WPA) protects past federal employees, present federal employees, and those who have applied to be a federal employee. These workers are protected from disclosing: 

• A violation of law, rule, or regulation  
• Gross mismanagement 
• Gross waste of funds 
• An abuse of authority 
• Substantial danger to public safety 

The US also has the Whistleblower Protection Enhancement Act (WPEA), adopted in 2012, protecting past, present, and future federal employees who report fraud, waste, or abuse disclosures. The WPEA established a Whistleblower Ombudsman, aiming to educate on retaliations for whistleblowing, employee rights, and remedies for protected disclosures. 

On the other hand, private employees are protected under OSHA’s Whistleblower Protection Program and the Sarbanes-Oxley Act. The Program enforces 20 federal whistleblower laws, while the Act protects private workers who report securities, mail, and wire fraud against publicly traded companies.

What should employers do?

As these laws exemplify, employers have a responsibility in regards to whistleblowing. In 2015, the UK Department for Business Innovation & Skills published guidance for employers and code of practice to encourage a safer and more transparent working environment.  

The guidance details how it’s good practice for employers to foster an open working environment where employees feel safe to speak up without fear of backlash or conflict. And while the law does mandate an existing whistleblowing policy, showcasing this to employees exhibits a commitment to listening and responding to employee concerns.  

Employers should demonstrate that they value their workers and encourage disclosures where appropriate, to protect others from harm. One way of demonstrating this is by implementing training, mentoring, and support systems for workers so they know who to approach in certain circumstances.  

It’s important to remember that a company’s reputation is manufactured by its employees. If many employees aren’t happy with the way management resolves — or doesn’t resolve — whistleblowing disclosures, this could ricochet down the supply chain and consumer awareness.