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What can workers or workers do to get protection under the Whistleblowing Act and what should they do if they are harassed?
Li Wenliang was the brave Chinese doctor who whistled on a Chinese social media blog about the SARS-like symptoms he observed in Wuhan, China, in December 2019, he had severely disrupted social order and made false comments. He then died of COVID-19. While he was unique in that he suffered the exact damage he wanted to prevent, his experience as a punished whistleblower is not uncommon.
Protection for whistleblowers was introduced in July 1999 by the Public Interest Disclosure Act 1998 (PIDA). Although it has been more than 20 years since then, the stigma of whistleblowers remains pervasive.
The pandemic has brought about a change and shift in demands on the pharmaceutical industry, including increasing demand, new sources of funding, shortages in pharmaceutical ingredients, pricing challenges, and the race to cure the virus through vaccines. A by-product of such challenges and the speed of change inevitably leads to errors and, in some cases, misconduct. Whistleblowers need to feel empowered to sound the alarm when it needs to be triggered.
Who is protected by UK whistleblowing law?
Protect, the UK whistleblowing charity, is currently campaigning for a change in the law. His 2021 campaign – Let’s Fix UK Whistleblowing Law – calls for certain urgent reforms, including protecting more people. Workers and workers enjoy protection (referred to as “employees” for the sake of simplicity in this article), but certain categories do not. Those who are not protected include the self-employed, non-executive directors, trustees and governors, volunteers, job applicants, and misidentified whistleblowers. This means that most of the people who work for pharmaceutical companies are protected, but if you are an independent contractor, for example, you may not be protected by UK whistleblowing law. However, these individuals can still find protection through other avenues listed below.
What protection do whistleblowers have when they whistle?
PIDA makes it illegal for an employer to fire or expose an employee to “disadvantage” for making a proprietary disclosure. A worker suffers a disadvantage if a reasonable worker would or could believe that he was disadvantaged in the circumstances in which he had to work. This may include denial of bonus or promotion, disqualification, or unfounded disciplinary or performance measures.
Unfortunately, UK whistleblowing law tends to be more remedial than preventive. Under current law, there are neither statutory standards for whistleblowing nor the obligation to introduce a recognized procedure for employers. In practice, most good employers have a whistleblowing policy, whistleblowing advocate, and procedures in place to address whistleblower concerns. In the absence of such procedures, employees can informally raise concerns about ill-treatment with their manager or make a formal complaint. Details of how to file a complaint are usually included in an employee handbook. The Advisory, Conciliation and Arbitration Board’s Code of Conduct on Discipline and Complaint also sets out basic standards that employers should adhere to when handling a complaint. When the matter cannot be resolved, individuals harassed by the whistle have limited options to obtain justice other than bringing their employer to court to seek redress. Given the pressure currently being placed on the labor court system by the pandemic, it may take years to reach a hearing in the labor court. For many, justice belated is justice denied.
However, there is one incredibly valuable and quick tool available to whistleblowers called temporary discharge. In the event of a dismissal, there is an option to apply for reinstatement or reinstatement, or to obtain a continuation order, which means you are entitled to receive your salary and benefits, as well as to continue employment until full hearing (possibly in years) without any obligation to work. The catch is that you have seven days from the date of dismissal to file an application for interim injunction with a labor court along with the claim. In view of the short timeframe and the high level of commitment, people who want to apply for interim legal protection are well advised to seek professional legal advice quickly.
What does whistleblowing mean?
Not all concerns are created equal under PIDA. In order to be protected, a person must make what is known as “Protected Disclosure”. The disclosure (which can be made in writing or orally) must be made in the reasonable discretion of the employee in the public interest and tend to reveal one or more of the following types of wrongdoing:
- Violation of a legal obligation
- Criminal act
- Errors of justice
- Endangering the health or safety of a person
- Harm to the environment
- Concealment of misconduct by
Finding out whether a disclosure is protected or not is not always easy. Whenever possible, individuals should seek legal advice on disclosure prior to making a disclosure to ensure they are protected from whistleblowers.
If you’re considering shaking the whistle, it is usually best to make your disclosure in writing (so you have evidence of your disclosure) that should clearly contain information that covers one or more of the six categories of above Show wrongdoing.
Who should I direct my Protected Disclosure to?
There are different categories of people listed in the Labor Rights Act
Ambiguity about the nature of an individual’s concerns about a protected disclosure can also be fatal
1996 To Whom An Individual May Make A Disclosure To Protect Them. In our experience, customers tend to share concerns with their employer or a relevant regulatory agency or both.
In the case of an employer, an individual should be able to review all whistleblowing policies, provide the guidelines, and determine the process to be followed in the case of protected disclosures. It can also indicate to whom the disclosure is to be made. If this is not the case, an employee should consider disclosing the disclosure to their manager and, if applicable, the person responsible for compliance or, if the manager is responsible, to the HR department.
Depending on the circumstances and the regulatory status of a person, a report can be made to the relevant supervisory authority or professional organization.
In addition to British whistleblowing law, in some cases there is the option to pursue a US reward claim introduced by the Dodd-Frank Act. This includes reporting whistleblowing concerns through the Securities and Exchange Commission’s whistleblower programs or the Commodity Futures Trading Commission about concerns about possible violations of federal security laws and regulations or other illegal activity in futures, options, and swap trading markets. Pharmaceutical companies are often publicly traded and stocks are traded in the United States. Whistleblowers are entitled to a surcharge of 10-30% of the fine imposed on the perpetrator (which can run into the millions). You do not have to be an employee of the organization you are reporting here1.
How long do I have to file a claim if I am dismissed or suffer a disadvantage?
A whistleblowing lawsuit must be filed within three months of the date of dismissal for automatic unjustified dismissal lawsuits or impairment lawsuits within three months of the offense or decision you are complaining about.
The deadlines are strict and are not interrupted by internal processes or objections.
As described above, workers can apply to get back to work if they have been laid off, but the application must be made quickly.
In our experience, the biggest pitfall is to seek legal advice too late – often long after protected disclosures and disadvantages suffered.
Ambiguity about the nature of an individual’s concerns about a protected disclosure can also be fatal.
The manner in which protected disclosure is made is also important. If a person whistles for personally motivated reasons, for revenge or to obtain a financial advantage, this can, if successful, affect the amount of compensation. In addition, employers can successfully avoid liability if they can prove that the disadvantages suffered are not due to the protected disclosure, but to a misconduct in the disclosure. This can include breach of confidentiality or covert records.
I’m looking forward to
We believe that much remains to be done to improve whistleblowing law, improve protection and remedies for whistleblowers, and establish standards that employers must comply with. The EU Whistleblowing Directive (which the UK is not required to implement) has sparked a debate in the UK on whistleblowing protection and calls for increased protection and support for individuals. However, the pace of change in the pharmaceutical world won’t wait for lawmakers to change the law. There’s never the right time to whistle, but with the help of legal advice, individuals can ideally develop a clear strategy before raising their concerns, in order to have the best chance of availing themselves of any safeguards currently available.
1 Visit: www.sec.gov/whistleblower/frequently-asked-questions#faq-16
Originally published by European Pharmaceutical Contractor (EPC)
The content of this article is intended to provide general guidance on the subject. Expert advice should be sought regarding your specific circumstances.