When the topic of whistleblowing comes up, images of Anne Robinson berating companies on WatchDog come to mind (showing my age here!). But in all seriousness, there’s something that makes whistleblowing feel inherently wrong, even when you know you’re in the right. So what’s the legal position of a whistleblower and what kind of protection can they expect?
What is a Whistleblower?
A whistleblower is a person who publicly exposes secretive information or activities within a company or organisation that’s considered to be something they shouldn’t be doing. Whistleblowing can be seen as taboo and employees can be shunned by their colleagues if their actions come to light. Unlike in movies where whistleblowers seem to bring down huge multinational corporations Erin Brockovich-style, whistleblowing can, and normally is much more mundane in nature, dealing with:
- Breaches in health and safety policies
- Non-compliance with the law
- Environmental damage
However, whistleblowers can also speak out if they see evidence of criminal offences, corruption or miscarriages of justice.
Whistleblowers and Coercion
Trainee solicitor Emily Scott was struck off and charged £2,000 in costs last month after blowing the whistle on dishonest behaviour by partners at her firm. The judgement came despite the tribunal accepting she had been “deceived, pressured, bullied and manipulated” into covering up misconduct at the North Lincolnshire company.
Deceived, pressured, bullied and manipulated
It was acknowledged that she had not benefited financially from the misconduct, but had acted dishonestly for four months and then waited two years, (until she had found another job), to report the malpractice to the Solicitors Regulation Authority (SRA).
Mrs Scott claimed to have been “between a rock and a hard place” after recruitment companies told her not completing her training contract at her firm would be frowned upon by future employers. Shortly following the verdict, Scott told the Sunday Telegraph:
“If I hadn’t blown the whistle that company would still be ripping people off. They encourage you to give them information then hang you out to dry. This could potentially prevent others coming forward in the legal world.”
Such was the furore that followed the ruling that the chief executive of the SRA spoke out in defence of the SDT. Paul Philip said the SRA would not be appealing to the High Court against the tribunal’s decision. He added: “Regardless of how senior you are, you need to think about your professional obligations in the interests of society and the profession.”
Elsewhere the regulator successfully appealed to the High Court last year in the Sovani James case, because it believed her suspended suspension was an insufficient sanction for dishonesty, and Ms James was struck off as a result. So the decision not to appeal in this instance is certainly not for lack of precedent.
The SRA says its whistleblowers’ charter sets out that if someone is involved in wrongdoing, reporting it can act as mitigation, particularly if done promptly. The operative word there is surely can, which gives rise to a whole plethora of ambiguities, and cannot be considered a stable incentive to ‘do the right thing’.
Following Mr Philip’s comments, the regulator has said it is reviewing its guidance on whistleblowing:
“in particular in respect to the reporting of information that may be subject to confidentiality obligations, for example from non-disclosure agreements.”
Juliet Oliver, general counsel at the SRA, said the guidance was being reviewed as part of a “rolling cycle” of reviews, but also because of issues relating to legal professional privilege and confidentiality. She added that it would be useful for the SRA to consider the position of trainees who needed to blow the whistle on misconduct in their firms.
It would be interesting to have seen how this case would have panned out under the new Standards & Regulations that state:
“Any obligation under this section or otherwise to notify, or provide information to the SRA will be satisfied if you provide information to your firm’s Compliance Officers for Legal Practice (COLP) or Finance and Administration (COFA) as and where appropriate, on the understanding that they will do so”.
If Emily Scott had said to her COLP (one of the partners involved) that she wanted them to report themselves to the SRA, would she then have been absolved from reporting matters to the SRA herself? Food for thought.
This aside though, the solicitor’s code of conduct bases its foundations in ethics for a reason, because right and wrong is not always black and white. Perhaps labelling a solicitor as dishonest should not be either?
Why Contact Our Employment Solicitors for a Whistleblowing Matter?
It’s essential you have trusted legal guidance and support within a whistleblowing case. If you have any questions or concerns around an employment matter please don’t hesitate to visit our Employment page or contact one of our solicitors in Brighton directly on 01273 726951.