Legal Research on Whistleblowing: Methods and Provisions

This document provides a comprehensive overview of whistleblowing, including its definition, legislative history, provisions, and recent case law. It explores the rights and protection given to whistleblowers and discusses the importance of whistleblowing in promoting transparency and accountability in organizations. The document also highlights the different approaches to whistleblowing in various jurisdictions and economies.

LEGAL RESEARCH
METHODS, PROJECT

Table of Contents
MAIN BODY..................................................................................................................................3
What is whistleblowing?..............................................................................................................3
Legislative History of whistle blowing........................................................................................3
Provisions on whistleblowing......................................................................................................4
Statutory rights given to whistle-blowers....................................................................................4
Recent case law on whistleblowing.............................................................................................5
REFERENCES................................................................................................................................1

MAIN BODY
What is whistleblowing?
Whistleblowing basically relates to the practice where the employee of a company discloses the
illegal practices that are being carried out in the organisation and such unethical practices of the
organisations are disclosed by the employee in good faith. This generally involves the practice of
making a disclosure about certain unethical practices that employees have witnessed at work.
The Public Interest Disclosure Act, 1998 and the Employment Rights Act, 1996 collectively
provides legal protection to the whistle blowers in UK1. The PIDA gives maximum protection to
the employees where they can claim unfair dismissal if after such protected disclosure, they are
either dismissed from their jobs or if they are refused the promotions and other opportunities that
are due for them. Further it has also been stated that the overall benefits under the act are only
available to the employees i.e. they cannot be given to the independent contractors or the other
workers who have been hired on external basis2. The revelation or disclosure that is being made
under the whistleblowing must be in the public interest including areas such as miscarriage of
justice, danger to health and safety concerns, non- compliance to any legal obligation, any
criminal offence etc.
Legislative History of whistle blowing
The legislative history of whistleblowing has been vivid where there was no legal structure or
proper management prior to the formation of the PIDA3. Earlier, the employees were not
safeguarded against the unjustified dismissal or victimization, removing promotion etc.
However, after a series of disclosures and such events it was later identified that if the
whistleblowing disclosures being made by the employees would have been taken into
consideration earlier than the overall scandals could have been avoided. This led to the
emergence of the term whistleblowing where the protection of the interest was given a greater
emphasis and the discussions regarding the employee safety in such cases also grew. The work
of Public Concern at Work and the Committee of Standards in Public Life were the two most
prominent welfare organisations who played a major role in the drafting and formation stages of
1 Al-Haidar, F., 2018
2 Savage, A., 2016
3 Public Interest Disclosure Act, 2019

the PIDA. The PIDA was made applicable by the government of UK in 1999 and this ultimately
led to the encouragement regarding the increased reporting of corrupt and unjustified policies if
there are any in the organisation or workplace so that ultimately the transparency and reporting
can be increased in the organisation.
Provisions on whistleblowing
There have been a variety of provisions that have been made for the whistleblowing over the
course of time where the different countries have worked in the development of the overall
policies and practices4. In the different jurisdictions and economies, the level of protection that is
given to the whistle blowers is significantly different. In France, the overall statutory protection
that is given to the whistle blowers is very low but in countries like USA, there are many laws
applicable at both national and state level that give high protection to the employees who have
engaged in the whistleblowing practices. In UK, a unified approach has been developed where
there is the necessity of further development in the overall legislation such as ECHR or ERA.
In order to increase the regulation and control, the mechanism of internal and external whistle
blowing was developed where it was concluded that the employees are encouraged to report any
irregularities or unethical business that they might observe by reporting the issues as soon as
possible to the responsible internal authority of the organisation so that the issues can be initially
resolved at the hand of internal authorities only5. This was also developed in order to minimise
the overall risk and damage that the organisation could face collectively.
Statutory rights given to whistle-blowers
An employee who has been given the title of whistle blower is only able to get the protection that
they are entitled to when the disclosure is protected and there is the dismissal of employee along
with their detrimental treatment as well. The section 13 (A) of the ERA states that there is the
need for the fact that the employee has made a protected disclosure against the company and this
is the sole reason behind the dismissal of the employee which is not justified. It was further
concluded in the case of Croydon Health Service NHS Trust v Beatt (2017)6, where it was stated
that the view was entirely objective and that the reference of the employer’s thought regarding
the disclosure being made is irrelevant collectively. Earlier the rights of the whistle blowers were
4 Lewis, D. and Vandekerckhove, W., 2018
5 Employment Rights Act, 2020
6 Croydon Health Service NHS Trust v Beatt, 2019

limited to the section of protected disclosures under the Employment Rights Act, 1996 but later
after the formation and implementation of the PIDA, 1996, the overall regulation and protection
of the whistle blowers increased considerably7. PIDA provides the protection against the bullying
of the colleagues and also minimizes the chances of the overall fallouts that might occur in the
employees.
Recent case law on whistleblowing
The most recent case law that can be referred in the case of whistle blowing in UK can be
Gilham versus Ministry of Justice (2019) where the district court judge Gilham complained that
she was facing severe consequences on the submission of the formal grievance which included
the negative impacts that were arising due to the budget cuts that were being made on the overall
functioning of the court system8. It was ruled out that the supreme court evaluated the major
question that whether the judges were protected enough against the whistle blowing aspect in
accordance with the ERA. The judgment was made that the act did not include wider purview
and hence the overall protection that was given under the act needed to be expanded so that the
collective protection could be increased9. It was also concluded that the judges who were earlier
excluded in the Act as employees or workers where again modified and they were given the right
to be termed as the workers under the act ultimately making Gilham entitled to the claim made
by her.
7 Minnaar, A., 2019
8 Gilham versus Ministry of Justice. 2020
9 Lewis, D.B., 2017

REFERENCES
Books and journals
Al-Haidar, F., 2018. Whistleblowing in Kuwait and UK against corruption and
misconduct. International Journal of Law and Management.
Savage, A., 2016. Leaks, whistleblowing and the public interest: The law of unauthorised
disclosures. Edward Elgar Publishing.
Lewis, D. and Vandekerckhove, W., 2018. Trade unions and the whistleblowing process in the
UK: An opportunity for strategic expansion?. Journal of Business Ethics, 148(4). pp.835-
845.
White, S., 2018. A matter of life & death: whistleblowing legislation in the EU. In Eucrim: The
European Criminal Law Associations’ Forum (Vol. 3, pp. 170-177).
Minnaar, A., 2019. The need for more anonymous whistleblowing in the fight against crime and
corruption. Acta Criminologica: African Journal of Criminology & Victimology, 32(1),
pp.i-v.
Lewis, D.B., 2017. Nineteen years of whistleblowing legislation in the UK: is it time for a more
comprehensive approach?. International Journal of Law and Management.
Online
Public Interest Disclosure Act. 2019. [Online]. Available through:
<http://www.legislation.gov.uk/ukpga/1998/23/contents>
Gilham versus Ministry of Justice. 2020. [Online]. Available through:
<http://www.oldsquare.co.uk/news-and-media/news/gilham-v-ministry-of-justice-2019-
uksc-44#:~:text=In%20Gilham%20v%20MOJ%20the,the%20Employment%20Rights
%20Act%201996.&text=The%20ET%2C%20EAT%20and%20CA,and%20the
%20Supreme%20Court%20agreed. >
Croydon Health Service NHS Trust v Beatt. 2019. [Online]. Available through: <
https://www.employmentcasesupdate.co.uk/site.aspx?i=ed35513#:~:text=Beatt%20v
%20Croydon%20Health%20Services%20NHS%20Trust%20%5B2017%5D%20EWCA
%20Civ%20401,-Share%20Tweet&text=Appeal%20against%20an%20EAT
%20decision,result%20of%20making%20protected%20disclosures. >
Employment Rights Act. 2020. [Online]. Available through: <
http://www.legislation.gov.uk/ukpga/1996/18/contents >
1

2