The recent conviction of Elizabeth Holmes in relation to fraudulent activities at biotech company Theranos reminds us of the impact that whistleblowing has had in the life sciences sector. Dr Li Wenliang’s attempts to raise the alarm in relation to COVID-19 in 2019 is another high-profile example.
But what are the legal issues arising from whistleblowing? Of course, these can be viewed from both the individual whistleblower’s and the business’ perspective.
Individuals
In the UK, whistleblowers making "qualifying disclosures" may well be protected from suffering a detriment or unfair dismissal under employment law under the Public Interest Disclosure Act 1998, the Employment Rights Act 1996, and any applicable specific protections for whistleblowing (e.g. protections for the Data Protection Officer under data privacy law).
Whistleblowing can give rise to allegations against the relevant individual of wrongdoing, including breach of confidence, breach of duties of confidentiality in contract, defamation or breach of public law duties of confidence (e.g. under the Official Secrets Act 1989). Threats to blow the whistle may also be viewed as extortion.
For the individual therefore, it is important to tread carefully in relation to whistleblowing, and to ensure that an appropriate procedure is followed, particularly if that individual is looking to rely upon protection under the law.
Businesses
For businesses, while it is not mandated in the UK, it is typically advisable to have some form of whistleblowing policy in place. This can assist in shedding light on problematic practices within the business and to manage these issues appropriately, ideally before they proliferate.
Having a whistleblowing policy can be an important part of a functional compliance programme, and may have direct benefits for the company (e.g. as a defence to allegations of failure to prevent bribery, or giving rise to a reduction in fines levied for competition law infringements).
Gustaf Duhs