WHISTLEBLOWING AND RELATED CONCEPTS
Chapter 1: Definition of Whistleblowing
1.2.0. The Public Interest Disclosure Act (PIDA)
PIDA encourages workers to report workplace grievances and other wrongdoings to their employers[1]. According to the legislation that was incorporated into Part 4A of the Employment Rights Act (1996), whistleblowing means reporting individual or organisational wrongdoings through internal or external channels in the public interest.
A major point of discourse on PIDA’s definition of whistleblowing is its emphasis on ‘the public interest.’ The legal framework takes a non-financial perspective of motivation with the widely debated assumption that humans have moral obligations to ‘do what is right for the general good.’ But most individuals, including potential whistleblowers, would not risk their personal and job security for nothing. Organisational theories of motivation such as McGregor’s X and Y theories[2] buttress this fact by examining human social behaviours. With regard to individual productivity and role of monetary compensations, McGregor categorized employees in two groups based on two factors. Theory X underscores the negative attitude to work. The model assumes that people are born with ‘an inherent dislike for work’ and would avoid taking responsibility at all costs unless they are coerced into action. These set of lazy people, McGregor opined, also have very little ambition but want job security.
On this backdrop, UK’s PIDA discourages potential whistleblowers with its non-monetary compensation stance and this unproductive policy should be reviewed to restore transparency and accountability in corporate governance[3]. It is eminent to further critically examine in detail the two crucial scope of PIDA in line with the definition.
In the public interest
According to section 43B (1) of the Public Interest Disclosure Act 1998, whistleblowers cannot claim protection unless disclosures are made with reasonable belief and in the public interest. This public interest requirement was introduced in 2013. The purpose is to avoid situations where, prior to 2013, purely contractual disagreements between organisations and employees were filed in courts to qualify for whistleblowing protection even though there was no real ‘public interest’ at stake. But while introducing the amendment to include the ‘public interest’ requirement, the UK government failed to provide any statutory or other guidance on the definition of the public interest. The scope of ‘the public interest’ has therefore been misunderstood. For clarity, most disclosures involving criminal offences, miscarriages of justice, breaches of health and safety and environmental damage are certainly in the public interest.
However, personal contractual disputes between an employee and his/her organisation, for example underpaid wages or holidays are outside the scope of whistleblowing protection. Yet, the position is not clear and applicable in all cases. The UK courts examined whether contractual disputes between an employer and a group of workers should fall within the scope of ‘public interest’
Reasonable belief
‘Reasonable belief’ refers to the level of certainty that inspired an employee’s report of workplace wrongdoing. To achieve the purpose of these whistleblower protections and encourage employees who would not otherwise report suspected wrongdoing, the whistleblower legislations offer protection to employees who have a “reasonable belief” that their employer is committing breach of the relevant law. But it is unfair and unrealistic to expect workers to have full knowledge of the intricacies of complex legal frameworks. For this reason, the US Congress grants broad protection to enable people to step forward whenever they have evidence of wrongdoing.
[1] Article 21(5) EU Whistleblower Directive.
[2] Brink, A., Eller, C.K. and Gan, H. ‘Reporting Fraud: An Examination of the Bystander Effect and Evidence Strength’ (2015) 18; 125-154 Advances in Accounting Behavioural Research
[3] Karatuna, I. and Başol, O. ‘To Blow the Whistle or Not: The Roles of Perceived Organizational Retaliation and Upward Communication Satisfaction in Employee Responses to Observed Wrongdoing’ (2018) 13; 217-233 Redefining Corporate Social Responsibility (Developments in Corporate Governance and Responsibility)
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