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What can employees or workers do in order to gain the protection
of whistleblowing law, and what should they do if they are
victimised?
Li Wenliang was the brave Chinese doctor who blew the whistle on
a Chinese social media blog about the SARS-like symptoms he had
witnessed in Wuhan, China in December 2019. He was detained by
police for spreading false rumours and made to sign an admission
that he had severely disturbed social order and had made false
comments. He subsequently died of COVID-19. While he may have been
unique in that he suffered the very harm he sought to prevent, his
experience as a whistleblower punished is not unusual.
Protection for whistleblowers was introduced in July 1999
through the Public Interest Disclosure Act 1998 (PIDA).
Despite more than 20 years passing since then, the stigma attached
to whistleblowers remains ever present.
The pandemic has presented a change and shift in demands to the
pharmaceutical industry, including increases in demand, new sources
of funding, shortages in pharmaceutical ingredients, pricing
challenges, and the race to cure the virus through vaccines. A
by-product of such challenges and the pace of change inevitably
leads to mistakes and, in some cases, misbehaviour. Whistleblowers
need to feel empowered to raise the alarm when it must be
raised.
Who Is Protected by UK Whistleblowing Law?
Protect, the UK’s whistleblowing charity, is currently
campaigning for change in the law. Its 2021 campaign –
Let’s Fix UK Whistleblowing Law – calls for certain
urgent reforms, including to ensure protection for more people.
Employees and workers have protection (referred to in this article
as ’employees’ for ease), but certain categories do not.
Those who are not protected include the selfemployed, non-executive
directors, trustees and governors, volunteers, job applicants, and
misidentified whistleblowers. This means most individuals working
for pharma companies will be protected, but if, for example, you
are an independent contractor you may not be protected by UK
whistleblowing law. However, such individuals may still find
protection through other avenues set out below.
What Protection Do Whistleblowers Have if They Blow the
Whistle?
PIDA makes it unlawful for an employer to dismiss or to
subject any employee to a ‘detriment’ because they have
made a protected disclosure. An employee suffers a detriment if a
reasonable employee would or might take the view that they have
been disadvantaged in the circumstances in which they had to work.
This could include denial of bonus or promotion, exclusion, or
baseless disciplinary or performance action.
Unfortunately, UK whistleblowing law is largely remedy focused
rather than preventative. As the law stands, there are no legal
standards imposed on employers for whistleblowing, nor is there a
requirement to put in place recognised procedure. In practice, most
good employers will have a whistleblowing policy, a whistleblowing
champion, and established processes in place to address concerns
raised by whistleblowers. In the absence of such procedures,
employees can raise concerns about mistreatment informally with
their manager or raising a formal grievance. Details of how to
raise a grievance are usually included in an employee handbook. The
Advisory, Conciliation and Arbitration Service code of practice on
discipline and grievance also sets out basic standards employers
should follow when dealing with a grievance. If matters are not
capable of resolution, individuals victimised for blowing the
whistle have limited remaining options if they wish to achieve
justice, other than to commence employment tribunal proceedings
against their employer to obtain a remedy. With the pressures
currently on the employment tribunal system caused by the pandemic,
reaching an employment tribunal hearing can take years. For many,
justice delayed is justice denied.
However, there is one incredibly valuable, speedy remedy
available to whistleblowers called interim relief. If you have been
dismissed, it is possible to apply to be reinstated or re-engaged,
or to be granted an order for continuation of employment, which
means that you have the right to be paid your salary and benefits,
and to accrue continuity of service until the full hearing
(potentially years away) without an obligation to do any work. The
catch is that you have seven days from the date of dismissal to
make an application to an employment tribunal for interim relief,
together with the claim. Given the short time frames and high
stakes, individuals wishing to make an interim relief application
would be well-advised to seek swift and expert legal advice.
What Amounts to Whistleblowing?
Not all concerns are equal under PIDA. In order to be
protected, an individual must make what is called a ‘protected
disclosure’. The disclosure (which may be made in writing or
verbally) must, in the reasonable belief of the employee, be made
in the public interest and tend to show one or more of the
following types of wrongdoing:
- A breach of a legal obligation
- A criminal offence
- Miscarriages of justice
- Endangering the health or safety of any individual
- Damage to the environment
- Concealing wrongdoing of any of
- the above
Working out whether or not a disclosure is protected is not
always a straightforward exercise. Individuals should, if possible,
seek legal advice on making a disclosure before they make it to
ensure they obtain whistleblowing protection.
If you are considering blowing the whistle, it is usually best
to make your disclosure in writing (so you have evidence of your
disclosure), which should clearly set out information showing one
or more of the six categories of wrongdoing above.
To Whom Should I Raise My Protected Disclosure?
There are various categories of people listed in the
Employment Rights Act
Not being clear about the nature of an individual’s
concerns when making a protected disclosure could also be
fatal
1996 to whom an individual can make a disclosure to in
order for it to be protected. In our experience, clients tend to
consider reporting concerns to their employer or a relevant
regulator, or both.
In the case of an employer, an individual should check any
whistleblowing policies, which may provide guidance and set out the
process one needs to follow when making protected disclosures. This
may also specify the person to whom the disclosure should be made.
In the absence of that, an employee should consider making the
disclosure to their line manager and, if applicable, the relevant
person responsible for compliance, or where the disclosure is about
the line manager then to HR.
Depending on the circumstances, and an individual’s
regulatory status, a report may be made to the relevant regulator
or professional body.
Other Avenues
Looking beyond UK whistleblowing law, there is, in some cases,
the option to pursue what is often referred to as a US Reward Claim
introduced by the Dodd-Frank Act. This involves reporting
whistleblowing concerns through the Securities and Exchange
Commission or the Commodity Futures Trading Commission
whistleblower programmes about concerns regarding possible
violation of the federal security laws and regulations or any other
unlawful activity involving futures markets, the options markets,
and the swaps trading markets. Pharma entities are often listed and
securities traded in the US. Whistleblowers are entitled to an
award of between 10-30% of the fine imposed on the offending party
(which could be in the millions). Here, you are not required to be
an employee of the organisation you are reporting1.
How Long Do I Have to Bring a Claim if I Am Dismissed or Suffer
Detriments?
A whistleblowing claim needs to be brought three months less one
day from the date of the dismissal in automatic unfair dismissal
claims, or in detriment claims, within three months of the act or
the decision you are complaining about.
The time limits are strict and are not paused by internal
processes or appeals.
As above, employees may make an application to get their job
back if they have been dismissed, but the application must be made
swiftly.
Pitfalls
In our experience, the biggest pitfall is seeking legal advice
too late – often well after protected disclosures are made
and after detriments are suffered.
Not being clear about the nature of an individual’s concerns
when making a protected disclosure could also be fatal.
The manner in which a protected disclosure is made is also
important. If a person blows the whistle for a reason that is
personally motivated, for revenge, or to obtain a financial
advantage, this may affect the amount of compensation awarded if
the claim is successful. Further, employers can successfully avoid
liability if they can show that detriments suffered are not because
of the making of the protected disclosure, but rather misconduct
committed in how the disclosure is made. This could include
breaching confidentiality or covert recording.
Looking Forward
It is our view that much needs to be done to fix whistleblowing
law to improve the protections and remedies available to
whistleblowers, and to introduce standards employers must comply
with. The EU Whistleblowing Directive (which the UK is not
obliged to implement) has sparked debate around whistleblowing
protection in the UK, and there is a call to broaden the scope of
protection and support offered to individuals. However, the pace of
change in the pharma world won’t wait for lawmakers to change
the law. There is never a right time to blow the whistle, but with
the help of legal advice, individuals can develop a clear strategy
ideally before raising their concerns to have the best chance of
availing themselves of all the protections currently available.
Footnote
1 Visit: www.sec.gov/whistleblower/frequently-asked-questions#faq-16
Originally Published by European Pharmaceutical Contractor
(EPC)
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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