Question of the month: Could volunteers and trustees be protected as whistleblowers?

A number of recent developments may extend whistleblowing protection beyond employees and workers.

New EU protections for whistleblowers

While the UK has been focused on the technicalities of leaving the European Union, the European Parliament continues business as usual. In April this year, the European Parliament formally adopted a directive which aims to strengthen whistleblowing protections across the EU, acknowledging that such protection is currently patchy. This move comes after scandals triggered by whistleblower disclosures such as the diesel car emissions revelations and "Panama Papers".

UK whistleblowing protection is some of the most comprehensive of all the EU member states. However, the UK legislation expressly protects only workers and employees.  The new EU directive will protect from retaliation anyone who discloses information on violations of EU law that they observe in their work-related activities. In addition to workers and employees, the new directive is designed to protect self-employed people such as freelancers, consultants and contractors, suppliers, non-executive directors, trustees, volunteers, unpaid interns and trainees and job applicants. It will also protect those who assist whistleblowers such as colleagues and relatives.

EU directives must be implemented in member state national laws before they have effect.  If and when the UK leaves the EU, it will not be required to pass such national legislation to implement the directive (unless a lengthy delay to Brexit means the UK is required to do so in the interim period). However, it is likely that the UK will still have to match these new protections as part of the corporate governance and accountability standards required within a future trade deal with the EU.

Charity Commission now treats volunteers as whistleblowers

A recent Charity Commission report on whistleblowing disclosures confirms that the Commission has begun to treat charity volunteers as whistleblowers where appropriate. The Commission comments that this is a significant change which extends its ability to identify and act on serious concerns. It notes that volunteers do not have the same statutory protection as workers and employees but it recognises that they need the same engagement from the Commission as a worker given that volunteers face many of the same challenges and risks when raising concerns.

Supreme Court: office holders may have whistleblowing protection

A recent case decided in the Supreme Court suggests that UK whistleblowing protection will already extend in some cases to those acting as office holders such as directors, judges and ministers of religion.

Case details: Gilham v Ministry of Justice

District Judge Gilham was appointed as a salaried district judge in October 2005. In 2010 she raised a number of concerns about the impact of cuts to the justice system, increased workload and the lack of secure court room accommodation. She expressed her fears that these could lead to miscarriages of justice and endanger people's health and safety. She later alleged that she had been undermined and bullied by other judges and by court staff as a consequence of her complaints.

She brought a whistleblowing detriment claim in an employment tribunal. The tribunal determined that she was not a worker and so could not benefit from whistleblower protection. On appeal, the EAT and Court of Appeal agreed.

However, on a further appeal, the Supreme Court remitted the case back to the tribunal. It held that denying DJ Gilham protection as a whistleblower was in breach of Article 14 of the European Convention on Human Rights (ECHR) as it impinged on her right to freedom of expression on the ground of her status (in particular her status as a judge). It decided that the definition of a worker within the Employment Rights Act 1996 should be read and given effect so as to extend whistleblowing protection to the holders of judicial office.

Following this case, it is possible that claimants who are not classed as workers or employees could bring legal appeals on the basis that their human rights have been interfered with on the ground of their status as office-holder.  It is also possible that this will have as yet unseen consequences beyond whistleblowing protection, extending rights currently limited to employees and workers to volunteers, trustees and the self-employed.

Wrigleys' comment

Third sector employers should be alert to the possibility that volunteers and trustees could ultimately be found to have legal protection from detriment if they raise concerns which could be in the public interest. To encourage people to come forward with concerns, it is advisable that whistleblowing policies and procedures apply to employees, workers, self-employed contractors and volunteers. Such policies should make clear that concerns will be taken seriously and that retaliation will not occur following disclosure.

It will be interesting to track the development of whistleblowing protections in the next few years. It seems that the direction of travel will very much be towards extending protection from retaliation to a wider group of individuals working with an organisation.