Whistleblowing concerns at the heart of the Post Office scandal: what hope of legal reform?

In the latest phase of the Post Office Horizon IT Inquiry, the limitations of the whistleblowing policies and practices of the Post Office Limited (POL) and Fujitsu have been exposed, together with the need for legal reform in the absence of the UK adopting the EU Whistleblowing Directive. The effective questioning at the inquiry of senior executive witnesses from both companies by counsel representing core participant sub-postmasters (SPMs) has revealed the limited viability and even absence of corporate whistleblowing policies.

Attempts by POL and Fujitsu to silence Fujitsu whistleblower Richard Roll since 2015, further reveal the problematic nature of both companies’ approach to whistleblowing. Roll’s evidence was ultimately crucial in securing the successful SPM group litigation judgment in Bates v Post Office Limited in 2019. Arguably, if his concerns about remote access to the Horizon system had been heard and acted upon when they were first raised, some of the subsequent personal costs to the SPMs and the financial and brand-related reputational damage to the POL could have been avoided.

The revelations

The silencing of dissenting voices of concern is a common theme in the evidence to the inquiry. In giving evidence, Paula Vennells, the CEO of POL, claimed she invited staff to raise concerns with her speak-up scheme ‘bad news is good news’. Yet, at the same time she was unwilling to listen to alternative narratives to the consistent assertion that the Horizon System was ‘robust’ despite limited evidence to support this. Vennells also purported the mantra of the Post Office as the ‘most trusted brand in the UK’ and as such ferociously defended the POL against all claims that the Horizon system had bugs, errors or defects. The questioning of Paula Vennells also revealed that the company’s whistleblowing policy was not extended to SPMs until 2018 and then only when ‘appropriate’.

The fifth phase of the inquiry provided extraordinary revelations of institutional defensiveness and collective denial, which meant that those raising concerns were harassed, victimised and silenced. This even included Second Sight, the external forensic accountancy firm who did so much to advance the case of the SPMs. In their evidence to the inquiry, they expressed frustration in not being able to blow the whistle as they were not protected in their role as contractors under current whistleblowing legislation. Second Sight had wanted to bring concerns of possible miscarriages of justice to a wider audience in 2013, but were also silenced by draconian non-disclosure agreements (NDAs).

Evidence from the inquiry is exposing how the current whistleblowing legislation is not fully equipped to protect whistleblowers, raising public interest concerns and reform is needed. The 2019 EU Whistleblowing Directive would have required the UK to introduce legislation that extends the protections to contractors and would require corporations to establish effective speak-up policies. In the absence of an obligation to comply with the EU Directive following Brexit, what hope does lessons from the inquiry and the election result from 5 July bring for greater protections for raising public interest concerns?

The possibility of greater protections

While the Labour Party’s manifesto does not mention specific whistleblowing reform in its Plan to Make Work Pay: A New Deal for Working People published in May 2024, there is a commitment to ‘strengthen protection for whistleblowers’, including by updating protection for women who report sexual harassment at work.

In the election campaign, the then Shadow Health Secretary Wes Streeting also promised to bring particular reforms to the NHS to ban managers who ‘silence and scapegoat’ whistleblowers. Details are yet to be provided, but Wes Streeting observed the only way to protect whistleblowers and create a culture of honesty and openness was through ‘tough enforcement’.

The new government has also expressed a commitment to enacting the findings of other public inquiries, such as the ‘Hillsborough law’, which places a duty of candour on public servants and authorities. So, it can be with some optimism that the emerging lessons of the Post Office scandal and other public inquiries where whistleblowing concerns have been central will be included within new employment legislation promised by the Labour Party within 100 days.