Making whistleblowing work for society (APPG for Whistleblowing, June 2020)

Summary

Are Employment Tribunals the right institution to handle whistleblowing cases? This report aims to open the debate by examining the evidence. A research team from the University of Greenwich analysed Employment Tribunal judgements in England and Wales, for cases that included a Public Interest Disclosure claim, between 2015 and 2018. A total of 603 cases were included in the analysis. Included in the study were only those cases that went to at least preliminary hearing. Cases that were withdrawn before preliminary hearing were discounted.

Content

Key findings

1. Whistleblowing cases have a low success rate. Only 12% of whistleblowers whose cases go to preliminary hearing at Employment Tribunals in England and Wales are successful.

2. Whistleblowers suffer more and longer than before. In 2018, nearly 40% of whistleblowers report going on sick leave, an increase of 15% since 2015. Whistleblowers also take longer than before to go to Tribunal. In 2018, nearly half of them took longer than two years, and more than one in five took longer than three years. Post Covid this is likely to almost double because of the backlog with Employment Tribunals now booking new hearings from February 2022.

3. Legal support matters for whistleblowers but less whistleblowers than before have access to legal representation. Whistleblowers are getting less expert support at Employment Tribunal than ever before. More whistleblowers self-represent than get legal representation. In contrast, employers secure more expert legal representation than ever before.

4. There is an important gender dimension for whistleblowers. Compared to male whistleblowers, female whistleblowers are:

• more likely to report health issues
• less likely to have legal representation
• even when the judge upholds the protected disclosures, they are less likely to see their unfair dismissal claim upheld.

5. Whistleblowing cases commonly include a discrimination claim, yet those are the least successful whistleblowing cases. These findings support the urgent establishment of the Office of the Whistleblower, as a centre of expertise, mandated to make interventions that increase access to justice.