Proposed legislation: up to 18 months jail for British whistleblower retaliators – by Chris Day (UK)
A whistleblowing law that allows 54,000 doctors to be argued out of whistleblowing protection for 4 years, evidence to be destroyed during a court hearing and one that fails in its most basic duty of preventing or even acknowledging that serious issues of public interest have been covered up is a law that is not fit for purpose. It actually does more harm than good to the public interest but like with most things it has winners and losers. The winners won't want to give it up.
The focus of next week in Parliament will be on a proposed solution in the form of a private member’s bill from Baroness Kramer. This bill aims to establish an independent 'Office of the Whistleblower'. This would take whistleblowing cases away from employment tribunals and the employment lawyers that make so much money out of turning serious issues of public interest into messy employment disputes. In the new proposal instead of an individual taking on a big organisation, the 'Office of the Whistleblower’ would take them on. The office's actions and decisions could then be appealed to a First Tier Tribunal if either a whistleblower or organisation contested the Office's findings. The proposed bill makes other important changes and can be read here.
I am looking forward to getting stuck into the debate. If you want to get involved the details are here.
It seems to me that at the heart of the debate and the proposed Baroness Kramer bill is the thorny question of whether the competence and integrity of employment tribunals and the world employment law can be trusted with whistleblowing cases. As a doctor who is 9 years into a whistleblowing case, you can probably guess my answer (read the employment tribunal will see you now doctor) to find out about my story.
Georgina Halford-Hall (WBUK) notes that if the bill becomes law, retaliation against those who make Public Interest Disclosures (whistleblowers) will be criminalised. Methods of retaliation include dismissal, execution of non-disclosure agreements to cover up serious wrongdoing, and destroying evidence. Penalties may include a term of imprisonment not exceeding 18 months.
New Zealand legislation around whistleblower protection generally follows the UK, with a lag of 2-4 years. It is up to local media to provide stop-gap measures.
We believe that New Zealand is no better and one case we’ll be highlighting is Hamilton City Council v Halse. Property manager Allan Halse was dismissed in January 2014 in retaliation for making protected disclosures (PIDs). He raised a personal grievance claim in the equivalent of the Employment Tribunal, and his claim was settled the following month in a mediation. The terms of the Record of Settlement were conventional, but a whopping seven years later the Council sued Halse for disparaging it albeit in a different context (he advocates for bullied workers), and disclosing the existence of the Record of Settlement. Incredibly, the Council won, but the matter has been challenged to the Employment Court (similar to the UK’s EAT) where we predict a humiliating collapse by the end of 2023.