The UK Government has missed a critical opportunity, in its recent consideration of the UK's whistleblowing framework, in deciding not to extend whistleblowing protection to other categories of worker as many had hoped. Most concerning for professional practices, is that the Government has failed to recognise in legislation the whistleblowing protection for LLP members recently recognised by the Supreme Court, and leaves unanswered the issue as to whether partners in a general partnership are protected.

The call for evidence

The Government’s whistleblowing review was prompted by the scandals surrounding the Mid Staffordshire NHS Foundation Trust and other high-profile incidents, in which whistleblowers were deterred from raising concerns. Despite the Government making amendments to the legislation in the first half of 2013, enough additional concern had grown that it made a call for evidence in July 2013 to look in detail at the legislative framework.  Its long-awaited response was published in June 2014 and received a generally disappointed reception.

The response

In its response, the Government has agreed:

• to tweak the category of those protected by whistleblowing legislation to include student nurses (and other similar student arrangements);
• to publish new guidance for whistleblowers; 
• to publish a non-statutory code of conduct / model whistleblowing policy to help businesses create policies and instil a consistent level of best practice.  However, no mention has been made (yet)of the detailed code of practice prepared as part of a report by the high profile Whistleblowing Commission published in November 2013; 
• to analyse the current system which allows whistleblowers to agree to their claim being referred to an appropriate regulatory body in the UK (e.g. HM Revenue & Customs, Health & Safety Executive etc).  It will also ensure that successful whistleblowers are aware that their Employment Tribunal fees for bringing a successful whistleblowing claim can be reimbursed by the respondent; 
• to ensure the statutory list of regulators  is updated online and reviewed annually (although the  existing formal statutory process for amending that list will be retained); and finally,
• to “explore options to celebrate those employers who embrace whistleblowing in their organisation”, with little detail on how this will be achieved.
• The list of items which the Government is not prepared to address (and where the general frustration therefore lies) include:
• No further extension being made to the categories of workers covered by the whistleblowing legislation, although the Government says that it will keep the situation under review.  This leaves the question of whether partners in a general partnership are protected and has failed to expressly recognise the rights of LLP members to whistleblowing protection following the recent Supreme Court case on this issue (Clyde & Co LLP and another v Bates van Winkelhof).  A general partner will now be left with the unenviable option of potentially having to take a case on the issue all the way to Supreme Court to get a definitive view.
• No additional categories of malpractice will be added to the existing six categories, which is surprising considering that the Government accepted that “the abuse and misuse of power” and “gross waste and mismanagement of funds” were not captured by the existing categories.
• No changes will be made to the methods of disclosure for a whistleblower (differing tiered conditions are attached depending on whether the disclosure is made internally to an employer,  to regulators or to a third party, such as the media for example).
• Regulators will not take on the greater role of protecting and investigating whistleblowing cases as was envisaged in the initial call for evidence.  Instead, the UK Government will introduce a duty on regulators to report annually on the whistleblowing complaints received (the details of which will be contained in an annual report subject once again to further consultation).  
• Despite being widely anticipated, no financial incentives will be introduced to encourage whistleblowing (in contrast to the position in the US and certain European countries).

The Government’s long awaited proposals contain little legislative reform. Any improvements – regardless of their aspirational nature - are of course to be welcomed, yet for all the momentum behind the call for evidence, the Government has ducked out of making the much needed reform, leaving gaps in the legislation particularly for those working in the professional sectors.  The emphasise to drive forward improvements on a non-statutory / cultural basis, as opposed to actually reforming the legislation, seems somewhat optimistic and more disappointingly, is a real missed opportunity to ensure that the UK takes the lead globally on encouraging ethical business practices and the proper regulation of professional services.

Clare Murray and Susanne Foster specialise in Partnership and Employment law at CM Murray LLP: www.cm-murray.com. CM Murray LLP is a founding member of the Professional Practices Alliance, which advises on the partnership law, tax, accounting and regulatory issues affecting professional services firms: www.professionalpracticesalliance.com