The consultation paper is organised into eight substantive areas, but they can be grouped under three themes: who gets protection and for what; how is the system used and enforced; and should whistleblowers be financially rewarded?
Who gets protection and for what?
Whistleblowing protection already extends beyond the standard employment law definition of “worker” to cover individuals such as agency workers, trainees, student nurses and midwives, police officers and some self-employed NHS practitioners. The government is now asking whether that circle should be further expanded to protect (among others) non-executive directors, job applicants outside the NHS, and certain self-employed individuals. The government believes that the Employment Appeal Tribunal’s four-factor framework from MacLennan v The British Psychological Society (likelihood of encountering wrongdoing, importance of making disclosures, vulnerability to retaliation, and availability of alternative protections) should be used for deciding where the line should be drawn. The government’s initial view is that volunteers should not be captured, but certain self-employed individuals may have a stronger case for protection.
Separately, the government is not proposing to remove the public interest test, which was introduced in 2013 to stop the whistleblowing regime being used as a backdoor for personal grievances and breach of contract claims. The government regards it as an important safeguard and is interested in views on whether it is operating effectively and whether more detailed non-statutory guidance would help employees to understand what the test means in practice.
Regarding what types of disclosures are protected, the government acknowledges that the list of qualifying wrongdoing under section 43B of the ERA is broad (for example, it captures concerns raised about criminal offences and breaches of legal obligations), but asks for views on whether it should be broadened even further. It asks whether the list is equipped for the AI era: does it adequately capture disclosures about the risks of frontier AI models, including risks to public safety, national security and critical infrastructure? It is also asking whether misuse of public funds and abuse of public authority are adequately captured by the existing framework. This is a good example of the consultation’s underlying concern: a 1998 law straining to apply to the risks of today.
How is the system used and enforced?
Internal disclosure and disclosure to a legal adviser have the lowest threshold for whistleblower protection. For a disclosure through these channels to be protected, the worker must reasonably believe (a) the information relates to qualifying wrongdoing, and (b) the disclosure is made in the public interest. Disclosing to a ‘prescribed person’ such as a regulator comes with the additional hurdle that the worker must reasonably believe the information is “substantially true”. The consultation asks whether this criterion unhelpfully discourages disclosures to regulators and, separately, whether there should be a new route for disclosures to trade union representatives (something that is currently only possible in limited situations), which would be subject to the lowest threshold for protection.
There is currently no strict legal requirement for companies to have a whistleblowing policy in place, investigate disclosures or keep a whistleblower’s identity confidential (although certain regulators, such as the FCA, impose more stringent requirements on organisations they regulate). The government suggests improving the existing non-statutory guidance for employers on whistleblowing policies and procedures or, alternatively, creating a new statutory duty on employers to have appropriate and effective procedures for handling disclosures. The new duty could either reflect the current (relatively flexible) obligations in place for UK financial services firms or be modelled on the more prescriptive framework in Ireland (which implements the EU Whistleblowing Directive). For employers, this is arguably the most consequential proposal in the whole consultation, as a statutory duty would convert the current ‘best practices’ approach to handling protected disclosures into an enforceable compliance obligation.
Under the current regime, a dismissed whistleblower has seven days to apply for interim relief, which is an injunction-like remedy that requires the employer to re-employ the employee until the matter can be substantively heard (or otherwise to pay them as if they were still employed). The government is proposing extending the application window to 14 days to give employees more time to take legal advice. However, the government also acknowledges that this could have implications for the employment tribunal system, noting that tribunals have historically received around 20 interim relief applications per year but this has recently increased to around 20 per month, likely as a result of the growing use of AI by claimants. This creates an interesting tension: extending the deadline to 14 days is meant to improve access to justice for employees, but a longer window would simply allow more time for AI-generated applications to be filed, further straining the system. Interestingly, the government has not proposed that interim relief for whistleblowing should be abolished all together, although it is open for respondents to the consultation to make this point.
A fourth proposal under this theme relates to the prescribed persons to whom workers can make disclosures. There are currently more than 90 such persons, and they are organised by sector rather than by type of disclosure. The list can be difficult to navigate. The government is proposing an AI triage tool that would help users find the right prescribed person, similar to the UK.GOV chat assistant launched in May this year. The danger with this approach is that employees might feed in highly sensitive and commercial information into the external chatbot. The alternative suggestion is a new government body that would take on a central triage role, receiving and assessing disclosures and directing them to the relevant prescribed person (though the government’s initial view is that such a body is not necessary).
Should whistleblowers be financially rewarded?
The most eye-catching item tabled for consultation is a proposed Serious Fraud Office (“SFO”) scheme to reward people whose disclosures about economic crime result in a corporate conviction or other enforcement action. The proposed design borrows heavily from the US SEC model and from HMRC’s own Strengthened Reward Scheme for tax whistleblowers: rewards calculated as a percentage of the financial penalty recovered, paid only once appeals are exhausted, potentially uncapped, and split where multiple sources contribute. Importantly, eligibility for a reward would not be tied to eligibility for whistleblower protection under the ERA; an individual could qualify for an SFO reward without ever having been an employee (or colleague) of the wrongdoer.
We flagged the direction of travel on financial incentivisation of whistleblowers in our December 2025 article on HMRC’s Strengthened Reward Scheme. We noted there that the Financial Conduct Authority’s (the “FCA’s”) historic resistance to paying whistleblowers was softening, with its own Chief Executive saying he was “not in principle opposed” to the idea. This SFO proposal is the next concrete step in that direction: a UK law enforcement body with a financial incentive scheme modelled on the SEC’s. A potentially negative dynamic we identified in respect of the HMRC scheme equally applies here: employees (or, as proposed, anyone with relevant information) may be incentivised to go straight to the SFO rather than raise concerns with their employer first, depriving the organisation of the chance to investigate and self-report on its own terms.
