Labour market enforcement in the 21st century: should whistleblowers have a greater role?

• Date: 01 May 2019
• DOI: http://doi.org/10.1111/irj.12251
• Published date: 01 May 2019
• Author: David Lewis

Labour market enforcement in the 21st

century: should whistleblowers have a

greater role?

David Lewis

ABSTRACT

Labour market enforcement can be achieved through a variety of mechanisms. On

the basis that inspectorates in the UK have been under-resourced historically and that

reliance on self-regulation is particularly objectionable in sectors that have a record of

providing low pay and poor working conditions, this article explores the potential for

using whistleblowing by both workers and non-workers as a method of enforcing la-

bour standards. The author believes that, in principle, policing by inspectors working

in conjunction with unions is particularly important in industries where small firms

are prevalent and individuals may feel particularly vulnerable to retaliation if they

speak up. Nevertheless, given the low likelihood of government inspections and low

levels of unionisation in the private sector, it is suggested that enhancing the protec-

tion given to whistleblowers who report suspected wrongdoing might deter employer

non-compliance and prove cost effective.

1 INTRODUCTION

Labour market enforcement can be achieved through a variety of mechanisms, in-

cluding proactive, targeted inspections conducted by a well-funded agency, self-regu-

lation by employers and the encouragement of workers to report concerns.

1

On the

basis that inspectorates in the UK have been under-resourced historically and that re-

liance on self-regulation is particularly objectionable in sectors that have a record of

providing low pay and poor working conditions, this article will explore the potential

for using whistleblowing by both workers and non-workers as a method of enforcing

labour standards. However, the author’s view is that, in principle, policing should be

conducted by inspectors working in conjunction with union or other labour represen-

tatives rather than relying on individual workers to raise concerns.

2

This is particu-

larly important in industries where small firms are prevalent and individuals may

feel particularly vulnerable to retaliation if they speak up about the work environ-

ment.

3

Nevertheless, given the low likelihood of government inspections and low

❒David Lewis, Law School, Middlesex University, The Burroughs, Hendon, London NW4 4BT, UK.

Correspondence should be addressed to: Lewis, David, Law School, Middlesex University, The

Burroughs, Hendon, London NW4 4BT, UK. E-mail: d.b.lewis@mdx.ac.uk

1

See generally Fine and Gordon (2005).

2

See Quinlan (2005).

3

See Croucher (2005).

Industrial Relations Journal 50:3, 256–276

ISSN 0019-8692

© 2019 Brian Towers (BRITOW) and John Wiley & Sons Ltd

levels of unionisation in the private sector, it is suggested that enhancing the protec-

tion given to whistleblowers who report suspected wrongdoing might deter employer

non-compliance and prove cost effective.

4

Although such a move might encounter ob-

jections, it is worth noting that current UK legislation already endorses vigilantism in

the public interest.

5

2 WHAT IS WHISTLEBLOWING AND WHY IS IT RELEVANT TO LABOUR

MARKET ENFORCEMENT?

Researchers often refer to the following definition of whistleblowing: ‘The disclosure

by organisation members (former or current) of illegal, immoral or illegitimate prac-

tices under the control of their employers, to persons or organisations that may be

able to effect action’(Near and Miceli, 1985). This covers the use of both internal

and external channels of communication as well as anonymous reporting but does

not coincide with the statutory definitions in the UK or elsewhere. For example, vol-

untary workers might be regarded as organisation members but such people are not

‘workers’for the purposes of Part IVA of the UK ERA 1996.

6

Indeed, who should

be treated as workers has been a hotly contested issue in the new gig economy, and

case law has demonstrated that the distinction between employees, workers and

self-employed has become blurred.

7

Whistleblowing has been analysed from a range of perspectives, for example, the

human right to free speech (Wragg, 2015); organisational citizenship (Organ, 1988);

principled organisational dissent (Miceli et al., 2008); the risk society and as a form

of employee ‘voice’(Hirschman, 1970). However, a ‘power resources’approach

(Skivenes and Trygstad, 2015) seems particularly relevant when considering the

potential role of whistleblowing in the context of labour market enforcement. Many

of those covered by minimum labour standards are undertaking precarious work

and may not speak up owing to ignorance of their rights, duress or fear of reprisals,

etc. Those protected by the statutory provisions on human trafficking/modern

slavery may also feel vulnerable for other reasons, for example, the fear that their

right to remain in the country may be questioned. In these circumstances, people

may feel powerless to complain or raise a concern about wrongdoing either within

their organisation or externally. Thus, it is argued here that, unless statutory

whistleblowing protection is extended, non-workers who suffer violations of labour

standards will have to rely on proactive investigations by the enforcement agencies

or others raising concerns are their behalf. Given the inadequate resources currently

devoted to such investigations, this article argues for more consideration being given

to the role of whistleblowing.

One feature of whistleblowers is that they do not necessarily possess evidence of

wrongdoing but merely a suspicion or belief. Although witness protection may be

4

This may be the case even if rewards are offered for information. On whistleblowing as an economically

efficient way of enforcing the law, see Givati (2016).

5

In addition to the Health and Safety at Work etc. Act 1974 and the Employment Rights Act 1996 (ERA

1996) Part IVA that apply to workers, there are counterterrorism and money laundering statutes that re-

quire persons to report concerns about suspected wrongdoing.

6

Part IVA was inserted by the Public Interest Disclosure Act 1998. ‘Worker’is defined in Section 230 ERA

1996.

7

See Taylor Review (2017) and Pimlico Plumbers Ltd v Smith [2018] UKSC 29.

257Labour market enforcement

© 2019 Brian Towers (BRITOW) and John Wiley & Sons Ltd