Contribution
It is a pleasure to serve under your chairmanship, Mr Turner. I thank my hon. Friend the Member for South Dorset (Lloyd Hatton) for securing this debate. As is well known, I worked as a solicitor prior to coming to this place, and I advised a significant number of clients on whistleblowing matters. Based on that experience, I think my hon. Friend is quite right that whistleblowers make an immense contribution to society and that their protection is extremely important.
I will take this opportunity to highlight two gaps in the law as I saw them in practice. The first relates to who is covered by the existing law. The EU whistleblowing directive would have introduced in this country coverage for self-employed people under the purview of the whistleblowing Act, but of course we have left the EU, so I assume we will not be implementing it. That is a terrible shame, because self-employed people are really important in this picture.
I have some casework relevant to this matter that I cannot refer to because it is going through tribunal, but in 2022 Inside Housing magazine found that, post Grenfell, fire risk assessors were coming under pressure from their employers or, if they were self-employed, their commissioners to downgrade their assessment of fire risk in social housing, because it is so expensive to remediate. In other words, fire risk assessors were whistleblowing that they were concerned that, when they had to make a professional judgment about danger, they were being put under pressure to assess things as being less dangerous than they actually were.
A lot of fire risk assessors are self-employed and are incredibly vulnerable, particularly if they have a major social housing client, as many do. They have all the vulnerability of being a whistleblower but none of the protection of employment legislation. They also work for other people, so they are not an employee and may not meet the definition of worker, so they are currently completely excluded. Protect has been campaigning for us to introduce protection into the law, and the EU has recognised that we need protection in law for self-employed people who whistleblow. I would very much like to see the law changed. It would be in the best interests of the whole country and everybody’s safety if we did so.
The second problem with whistleblowing law is that it is hard to advise a client that it is worth their taking the risk to bring a case because it is very difficult to prove reliably that what caused the breakdown of the relationship with their employer is the fact that they whistleblew. Employers understandably do not want to admit that their employee was mistreated because they whistleblew, to the extent that they systematically delude themselves about why that person was excluded and subsequently dismissed.
There are two ways in which that happens. In a financial services context, I have seen a person’s performance being heavily criticised as “non-commercial”. What that actually means is that the person is not giving the advice that people want to hear, which is quite different from not being commercial; it means that the person actually has regard for the law, and that is unpopular. We have seen examples of that. It is well known that the in-house counsel for the Post Office stopped being invited to meetings because she was not providing the advice on the law that people wanted to hear, so the board and the chief exec just started shutting her out.
It definitely happens in legal contexts and financial services contexts. People’s performance starts to be criticised very heavily, but to the person advising them there will be a systematic set of evidence that shows that they were being performance managed. The person advising the client has to tell them, “This is high risk. Your employer is going to say that you were underperforming. I am going to say, on your behalf, that you were being penalised for whistleblowing, but some of this will depend on what the tribunal finds on the day.” That is quite a difficult environment in which to advise people to continue to whistleblow.
The second line of case law that is really problematic in a whistleblowing context is about the irreconcilable breakdown of relationships. There is a whole line of case law about how badly people fall out with their colleagues when they start whistleblowing. I have seen that in an NHS context—in fact, the line of case law comes from an NHS context. The employer says, “Oh, no—you haven’t been penalised for whistleblowing. You’re an impossible human being. You are impossible to work with. You have fallen out with all your colleagues and you have been dismissed completely legitimately for another substantial reason: you cannot work with anyone, and that is compromising patient safety.”
I have watched an NHS trust systematically trying to line up a member of staff—it is clear from reading the papers—to say that they absolutely cannot get on with their colleagues any more. It carried out independent investigations to find that the person cannot get on with their colleagues. The reason why the person cannot get on with their colleagues is that they are repeatedly raising concerns about their clinical practice, which those people do not want to hear, so they all round on the whistleblower. The case law on the irreconcilable breakdown of relationships is hugely problematic for whistleblowers, and we need clarity in the law such that employers cannot hide behind—or frankly, construct—an irreconcilable breakdown of the relationship to hide, and make potentially lawful, a dismissal that in any other circumstance would clearly be a whistleblowing dismissal.
I thank my hon. Friend the Member for South Dorset for securing the debate, and I look forward to hearing from the Minister. There is a significant need for legal change in this area.